CENTENARY
HIGH COURT OF JUDICATURE AT ALLAHABAD
1866— 1966
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CENT E N A R-Y
HIGH COURT OF JUDICATURE
AT
ALLAHABAD
1866—1966
COMMEMORATION
VOLUME I
High Court , Allahabad
Printed in India by the Superintendent , Printing and Stationery, Uttar Pradesh, Allahabad
and published by the Allahabad High Court Centenary Commemoration Volume Committee
1966
CONTENTS
Pages
Messages.
Planning of the Centenary Celebrations ... j
Introductory Note .. ... ... _ x —
HISTORICAL
History of the High Court at Allahabad during the Chief Justiceship of i
Sir Walter Morgan <1866 —1871) —Sir Archibald Henry Benedict
Linthwaite Braund, Ex-Judge, Allahabad High Court,
The High Court for the North-Western Provinces (1866 — 1876) — 23
Sir Orby Howell Mootham, Kx, Ex-Chief Justice, Allahabad High
Court.
The Judiciary and the Executive — Sir John Douglas Young, Retired Judge, 45
Allahabad High Court.
The Indian Judicial System : A Historical Survey — Mr. Justice S. S. Dhavan, 53
Allahabad High Court.
Origin and Growth of High Court — Sri Swami Dayal, Advocate, Allahabad High 97
Court.
The * Judges in the English Department ' subsequently known as *Judges in the 133
Administrative Department * — Sri K. P. Mathur, Retired Judge,
Allahabad High Court.
The History and Role of Subordinate Civil Judiciary in Uttar Pradesh — 145
Sri Bind Basini Prasad, Retired Judge, Allahabad High Court.
History of the High Court Bar Association — Sri Satyendra Nath Varma, 165
Advocate, Allahabad High Court.
History o] the Court in Avadh from 1856 A. D. up to Present Time — * 185
Sri H. K. Ghose, Bar-at-Law, President, Avadh Bar Association,
Lucknow.
Law Officers of the State in Lucknow Courts : Judicial Commissioner* s Courts- 531
Government Pleaders.
Advent of Women in the Profession of Law — Mrs. Ramo Devi Gupta* Advocate, 333
Allahabad High Court.
Pages
History of Law Reporting in India — Sri J. K. Mittal, Lecturer in Law, 241
University of Allahabad.
A Historical Retrospect of the Administration of Justice in Kumaun — 257
Sri N. D. Pant, Advocate, Allahabad High Court and Supreme Court.
PEN PORTRAITS OF EMINENT JUDGES
The Right Hon’ble Sir John Edge — Sri Arvind Kumar, Advocate, Allahabad , 265
High Court.
Mr. Justice Mahmood — Sri Gur Dayal Srivastava, Advocate, Allahabad High 271
Court.
Sir Shah Muhammad Sulaiman — Mr. Justice R. S. Pathak ... 293
Some English Judges whom I Admired — Sri S. P. Sinha, Senior Advocate, Supreme 307
Court and Ex-Judge, Allahabad High Court.
Sri Pramoda Charan Banerjee — Sri Amitav Banerji,. Advocate, Allahabad High 319
Court.
Sir Bisheshwar Nath Srivastava — Late Sri Maheshwari Dayal, Retired District 325
Judge. , '
Justice Niamatullah — Sri S. K. Dhaon, Advocate, Allahabad High Court .. 331
ADVOCATE GENERAL OF U. P.
My Predecessors-in-Office — Sri K. L. Misra, Advocate General, U. P. ... 335
PEN PARTRAITS OF EMINENT ADVOCATES
Munshi Hanuman Prasad— Sri Onkar Nath Mehrotra, Advocate, Allahabad 349
High Court.
Pandit Ajudhia Nath — Mr. Justice Jagdish Sahai ggg
In Memorium — The Late Mr. Jogendra Nath Chaudhri— The Late Rt. Hon’ble 363
Sir Tej Bahadur Sapru.
Pandit Sir Sunder Lai — Sri Kazi Masud Hasan, Advocate, Allahabad High Court 371
Pandit Moti Lai Nehru — Sri N. D. Ojha, Advocate, Allahabad High Court ... 381
Munshi Ram Prasad— Sri Shambhu Prasad, Advocate, Allahabad High Court 393
B. E. O'Conor — Sri Hari Swarup, Advocate, Allahabad High Court ... 399
Dr. Satish Chandra Banerji — Mr. Justice Gyanendra Kumar ... 407
Sir Tej Bahadur Sapru— Sri M. N. Shukla, Advocate, Allahabad High Court ... 415
Sir Charles Ross Alston — Sri Brij Lai Gupta, Advocate and Ex-Judge, Allahabad 423
High Court
Pages
Dr. Surendra Nath Sen : The Burke of the Allahabad Bar— Sri Gopal Behari, 431
Advocate, Allahabad High Court.
Mr. Pearey Lai Banerji—JSri Kedar Nath Sinha, Senior Advocate, Supreme Court 437
and Allahabad High Court.
OTHER JURISTIC AND LEGAL SUBJECTS
*A Case of Constitutional Conflict between the State Legislative Assembly and 443
the High Court ’ : Supremacy of the Constitution Vindicated —
Mr. Justice Mirza Hameeduiiah Beg.
Procedural Law in Smritis — Sri Harish Chandra Pati Tripathi, Judge, 463
Allahabad High Court.
The Moral of our Judicial Pronouncements — Mr. Mushtaq Ahmad, Ex-Judge, 471
Allahabad High Court.
Origin and Nature of Courts — Sri H. P. Dubey, Advocate, Allahabad High Court 477
MEMOIRS AND REMINISCENCES
My Reminiscences of the Allahabad High Court — Sri G. S. Pathak, Union Law 493
Minister.
Some Judges and Lawyers Whom 1 Knew — Dr. Kailas Nath Katju (Formerly 497
Governor of Orissa and West Bengal and Union Minister for Home
Affairs and Defence and Chief Minister of Madhya Pradesh).
Reminiscences — Dr. Bidhubhushan Malik, Ex-Chief Justice, Allahabad High 519
Court.
The High Court : My Reminiscences — Sri S. P. Sinha, Ex-Judge, Allahabad 535
High Court (Now Senior Advocate, Supreme Court of India).
“Resurrected Impressions” — Mr. B. Mukerji, Retired Judge, Allahabad High 543
Court.
ANECDOTES AND REPARTEES IN THE HIGH COURT
One Hundred Years : Random Thoughts — Sri Sankar Saran, Ex-Judge, 557
Allahabad High Court.
LIST OF PLATES
1. Symbol of Justice
2 . High Court Buildings.
MESSAGES
3- Dr. S. Radhakrishnan, President of India and other Dignitaries
PLANNING OF THE CENTENARY CELEBRATIONS
4. The Hon’ble Mr. Nasirullah Beg, Chief Justice
5. Members of the Planning Committee
6. Members of the Commemoration Volume Committee
7. Members of the Sub-Committees, Centenary Celebrations
8. Judges of the Allahabad High Court and Lucknow Bench
9. Hon’ble Chief Justices and Hon’ble Judges (1866 — 1966)
HISTORICAL
10. The Hon’ble Sir Walter Morgan, First Chief Justice
11. Sir O. H. Mootham
15. Retirement of Sir Comer Petheram, Chief Justice
13. Foundation Laying Ceremony of the present Hight Court Building
in 1911.
14. Opening Ceremony of the High Court Building in 1916
15. Amalgamation of the Chief Court of Oudh with the High Court of
Allahabad.
16. Retirement of Hon’ble Mr. M. C. Desai and appointment of
Hon’ble Mr. V. Bhargava as Chief Justice.
17. Dr. N. P. Asthana, President, Bar Association (First Advocate
General, U. P.).
Frontispiece
After page xi
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After page xvi
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After page xvi
After page 22
After page 131
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After page 164
*^ 5 * e
iS. Members of the Bar Library, 1917
19. Members of the Allahabad High Court Bar, 1920
20. Members of the Advocates’ Association, 1955
si, Members of the Go\erning Council of Bar Association ...
22. Members of the High Court Bar, 1966
23. Sri K. L. Misra, Advocate General, U. P. ...
24. Members of the Bar Council, 1966
25. Prominent past and present members of the Allahabad High
Court Bar.
26. Judicial Commissioners of Oudh
27. Judges of the Chief Court of Oudh
28. Avadh Bar Association, Lucknow, 1966
PEN PORTRAITS OF EMINENT JUDGES
29. Retirement of Sir John Edge, Chief Justice, 1898
30. Mr. Justice Mahmood, First Indian Judge
31. Sir Shah Mohammad Sulaiman, Chief Justice, 1932 ...
MEMOIRS AND REMINISCENCES
32. Dr. Kailas Nath Katju
33. Officers of the High Court, 1966
34. Superintendents of the Allahabad High Court, 1966
35. Personal Assistants, Allahabad High Court, 1966
36. Ministerial Staff, Allahabad High Court, 1966
37. Ministerial Staff, Lucknow Bench, 1966
After page 183
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After page 183
After page 232
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After page 264
After page 270
After page 292
After page 496
After page 563
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Dr. S. Radhakrishnan
President of India
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Rashtrapati Bhavan,
New Delhi-4.
April I, 1966
MESSAGE
I take great pleasure in being associated through this Commemoration
Volume with the centenary celebrations of the Allahabad High Court.
The Allahabad High Court, one of the oldest High Courts in the
country, had comparatively humble beginnings. In June 1866, with a com-
plement of only six Judges and an equal number of Advocates, it replaced the
Sadar Diwani Adalat. Today, after a century of its existence, it is the biggest
High Court in India, with six times its original number of Judges and over
10,000 Advocates on its rolls. As a Temple of Justice, it serves some 734 lakhs
of our people, the largest population of any of our States. The Court can look
back with justifiable pride on the galaxy of eminent men who have presided over
its deliberations, Morgan, Stanley, Mahmood, Edge, Henry Richards, Lindsay,
Sulaiman, P. C. Banerji, Lai Gopal Mukherjee — all of whom acquired lasting
fame in the judicial field. Its Bar likewise can boast of such luminaries as
Pandit Ajodya Nath, Sir Sunder Lai, Pandit Moti Lai, Sir Tej Bahadur Sapru,
Madan Mohan Malviya, Pandit Jawaharlal Nehru, Dr. Kailas Nath Katju
and Dr. N. P. Asthana.
With men of such outstanding calibre to nurture it, the Allahabad High
Court has a great legal tradition of progress towards its present position. As
the interpreters of our Constitution, the High Courts have very special
responsibilities and powers. It is on the faithful and judicious exercise of these
that our avowed goal of “Justice, social, economic and political” for all our
citizens will be reached. I am certain that the members of the Allahabad
High Court and the Bar will continue to maintain the high standard of justice,
integrity, honesty and impartiality in the fearless dispensation of justice that has
been set by the eminent judges and great lawyers. I send you all my very
best wishes on this historic and happy occasion of your centenary.
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PRIME MiNfSTER‘5 HOUSE
NEW DELHI
March 15, 1966 .
MESSAGE
The Allahabad High Court has estab-
lished a great name for itself in the world of
law. The Judges and the leaders of its Bar
t Ps, jl have been among the foremost in the land and
# m many of them have moulded the nation’s
history. Memories of my grandfather, Moti Lai
Nehru, and our great family friend Sir Tej
Bahadur Sapru and other eminent persons
come to mind. Because of this association with the Allahabad High
Court, for me it is a special pleasure to salute this great institution in its
centenary year.
Indira Gandhi
Prime Minister of India
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GOVERNOR S CAMP,
UTTAR PRADESH
July 28, 19 66
MESSAGE
Biswanath Das
Governor , Uttar Pradesh
On the occasion of the First Centenary of
the High Court of Allahabad — Uttar Pradesh,
the biggest and one of the most reputed High
Courts of India, I convey my hearty greetings
and good wishes, Uttar Pradesh, though a cons-
tituent State, holds the 9th position in point of
population, among the States of the world, with
her 75 million population. The High Court of
Judicature has a very important role to play in
maintaining the rule of law and in upholding the
Constitution of India in terms of the prescribed
Oath of the Hon’ble Judges. This High Court
is the 4th in India, established under the British
Rule — a few years after the Indian administration
transferred to the Crown — from the East India
Company. Allahabad had the proud privilege of
having reputed Judges, while the Bar had the reputation of having, to its credit,
eminent jurists, who could be the pride of any nation or country.
Judicial process loses much of its usefulness, attraction and reputation
unless it is quick, for ‘justice delayed is justice denied 5 . The present pendency
of the High Court, with near-about 50,000 cases, appeals, writ petitions, etc.,
is a cause for anxiety, concern and is a call for inquiry. More so, because
this pendency should have gradually gone up even though the strength of the
Bench has increased very nearly by about 100 per cent during these nineteen
years of our Independence.
Our High Court, with the united devotion, zeal and commendable
concern, both of the Bench and the Bar, has created and maintained, so far,
high traditions. Good traditions, commendable as they are, become a source
of inspiration for the successors in office. Let me hope that these high
traditions, of this reputed High Court, be carefully and scrupulously maintained
with added glory.
CHIEF JUSTICE OF INDIA,
s* Hastings Road,
New Delhi .
February 4, 196^
MESSAGE
On the solemn and auspicious occasion
of the Centenary Celebrations of the High
Court of Judicature at Allahabad, I join
with great pleasure the whole brotherhood
at law consisting of the Judges and members
of the Bar in Uttar Pradesh in paying
respectful homage to the memory of all the
distinguished and illustrious Judges and lawyers
of the Allahabad High Court who helped to
build its proud and noble traditions in the
past. I would also like to offer to the Judges
and members of the Bar of the Allahabad
High Court my warm felicitations coupled with the prayerful hope
and confidence that the present and the future of the Allahabad High
Court would be worthy of its past. I wish the Celebrations all
P. B. Gajendragadkar
Chief Justice, India
success.
CHIEF JUSTICE OF INDIA,
5, Hastings Road,
New Debt, the J^.y. 4 .^. .19
MESSAGE
Yours is not only one of the oldest
High Courts in the Country but a High
Court which through the years has acquired
a great name and tradition. The celebration
of the Centenary of such an institution is a
great event and I join in it with all my heart.
The law reports will disclose the contribu-
tion that your High Court has made to the
building up of the judicial traditions and
independence. The Allahabad High Court
has produced legal giants whose names will never be obliterated from the
history of our laws and courts. On this occasion I further fervently wish
that they will go on inspiring you as also the rest of us connected with courts
of law all over the country.
May your Court continue the great traditions that it has built up through-
out the years.
A. K. Sarkar
Chief Justice, India
ft . K .
CHIEF JUSTICE OF INDIA,
New 'Delhi, the. 8th July-, 1966.
MESSAGE
No institution deserves to survive in a
democracy unless it earns public esteem.
Judiciary is no exception to it. It can earn
such an esteem only by discharging its duties
fearlessly, impartially and expeditiously. The
High Court of Judicature at ALLAHABAD
has had a glorious past. It produced eminent
Judges and great advocates. By mutual
respect between the Bench and the Bar and by
a co-operative effort, the High Court was able
to maintain high standards. I have no doubt
that the present generation of Judges and advocates will emulate their
predecessors and continue not only to maintain the said standards but also to
improve on them. The High Court, after Independence, has an important
and a new role to play. Apart from deciding disputes between parties,
it is a balancing wheel of federalism ; it maintains a just equilibrium between
fundamental rights and social justice. It controls the arbitrary actions of
the executive. I hope and trust that the High Court of Judicature at
Allahabad will continue to enforce the high constitutional concept of rule
of law — a rule of law in which fundamental rights and principles of social
justice are integrated— to the satisfaction of all concerned in the State.
K. SUBBA RAO
Chief Justice , India
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MESSAGE
HOME MINISTER
INDIA
New Delhi:
August 9, 1966
I learn with interest that the Allahabad
High Court will be observing its centenary
in the month of November 1966.
One hundred years is a long time in
the life of any human organisation and in
a special way, this glorious institution serves
to crystallise for us in its judgments the hopes,
fears and ambitions of ordinary men and
women. I know that this High Court will continue to cherish the high
traditions that have been handed down to it over the years and make a special
contribution to the achievement of social justice.
G. L. Nanda
Home Minister, India
Law Minister. India
New Delhi :
3, Motilal Nehru Place
MESSAGE
The Allahabad High Court com-
pletes one hundred years. As one looks
back over this period, one feels that it has
been a century of great strides and events.
The first War of Independence, waged in
1857, ultimately led to the transfer of the
Indian administration to the direct care of
the British Crown. This irretrievably threw
us into the main stream of British life
and tradition. The pace of the impact of
western liberal tradition on Indian life
G. S. Pathak
Law Mmistei, India quickened, resulting in generating a ‘spirit of
criticism’ and ‘new social urges’. Liberalism gradually came to be accepted
as the political creed of India, the result of which was a universal belief
in, and recognition of, civil liberties and the Rule of Law.
The judicial system that obtains in India today is very largely fashioned
on the British pattern. The contribution of High Courts established by the
Crown under Letters Patent towards bringing about a uniform system of jus-
tice and law is indeed very great. This High Court, whose seat at one time
was at Agra, rightly claims the privilege of being one of the oldest High
Courts, and has had a very distinguished record. Great names like those
of Mr. Justice Mahmood, Moli Lai Nehru, Sir Tej Bahadur Sapru, Sir Shah
Mohammad Sulaiman, Jawaharlal Nehru and many others are associated
with this High Court, and for one who has been associated with it for the
past 38 years, reminiscences are indeed nostalgic. Great battles were fought
at the Bar and innumerable human stories depicting strange aspects of human
psychology and behaviour were unfolded. But one thing stands out amidst
all the din of legal battles and that is that the members of the Bench and
the Bar of the Allahabad High Court always assiduously strove for up
holding the Rule of Law and the protection of civil liberties even during
the most trying times.
The fame the High Court has gained as an unshakable pillar of the
edifice of Indian democracy and the faith it has earned of the people by its
unswerving adherence to the highest traditions of Justice and Juridical thought
will everlastingly redound to its credit
I pay my humble homage to this
future of even greater glory and lustre.
New Delhi :
13 tb September, 1966
and honour.
great Seat of Justice and wish it a
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EDUCATION MINISTER
INDIA
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MESSAGE
M. C. Chagla
Education Minister, India
The Centenary of the Allahabad High
Court is an important event in the history
of the judiciary in India. Even in British
times however deplorable the attitude of our
then governors might have been towards our
political aspirations, High Courts and High
Court Judges dispensed justice with an even
hand and protected the citizen from any
illegal encroachment upon his rights by the State. In conformity with these
traditions established in pre-independence India, the Allahabad High
Court has contributed a very illustrious chapter to the history of Indian High
Courts and has upheld the prestige and dignity of the Judges and has been
responsible for the confidence which the people have in the courts and the
Judges. In a democratic country where the rule of law prevails, the
judiciary has even a more important role to play. I sincerely hope that
in years to come the Allahabad High Court will continue to uphold
the rights of citizens and act, as indeed our Constitution intended, as the
custodian of their Fundamental Rights.
New Delhi :
January 27, 1965
Luckxow
October 26 s 19 66
MESSAGE
Our democratic system being based on the rule
of law, the Constitution assigns to the High Court
a special position. The Allahabad High Court
with its old traditions is amply fitted to fill that
position. It holds a unique place among the older
High Courts of the country and its Bar and Bench
have contributed many illustrious figures to the
public life as well as the field of law.
I send my hearty felicitations to the Chief Justice and his colleagues
and members of the High Court Bar on the historic occasion of the
Centenary Celebrations.
SUCHETA KRIPALASI
Chief Minister , Uttar Ptaclesh
9- A Clyde Road,
Lucknow.
October 31, 1966.
MESSAGE
The High Courts in India have played a
vital role in making the transition, from a feudal
system cf society to a democratic and socialistic
type under a written Constitution, possible. The
rule of law is the corner stone of anv democratic
j
Government on which the entire edifice rests.
It has become possible only because the High
Courts in India have been able to earn during
the last century the respect and admiration of
the masses by administering even-handed justice,
by adhering to well-known principles of modern
Sved ali zaheer jurisprudence, precedents, and the law of the
Law Minister of Uttar Pradesh , , __ T , , .......
land. When the present system 01 Administra-
tion of Justice with these High Courts was established in India, they
were new to the country and so was the system which they were expected
to administer. As years have rolled by they have adapted themselves to the
changing conditions and situations, but basically they have retained the
framework, and maintained high tradition of integrity and brilliant exposi-
tion of law, through their judgments. It is the greatest compliment to them
that even after the revolutionary changes through which this country has
passed during the last century, and recently when we earned our freedom,
High Courts, in spite of being a foreign institution, retained the fullest con-
fidence of the overwhelming masses in this country. A vast majority of
the laws which are administered by these Courts — both substantive and
procedural— are by no means indigenous, and yet they have gradually become
a part and parcel of everyday life of all the citizens— whether a town dweller
or a villager. Even the most ardent nationalist now firmly believes that any
radical change in the system of administration of justice will undermine not
only the stability of the country, but will shake the confidence of the people
in democracy itself.
2. The High Courts have also played the important role of a cementing
force among the people living in far flung areas of this sub-continent, separated
from each ether by thousands of miles and having distinct languages, habits
and culture. A single system of law governing all our people, and High
Courts, almost uniformly, enunciating various principles, for the benefit
of all, has created a unique sense of unity among us. There is no doubt that,
in spite of all the din and clamcur for separate political units in different parts
of the country, the fact that the same lawis faithfully administered by different
High Courts and that there is one Supreme Court, for the whole of India and
that the one law as laid down by the Supreme Court is the law of the land,
creates, nourishes and strengthens a sense of unity among all the citizens of
this country.
3. The High Court of Allahabad being one of the oldest, and now
admittedly the largest, in the whole of India, has played a creditable part in
the evolution of this sentiment. The luminaries who have adorned the Bench
of this High Court in the past have left indelible mark of their high legal
acumen and genius in its annals, and have made solid contribution towards
the elevation of its prestige among the High Courts in this country, and won
the faith of the vast millions living in this State, in its sense of justice and
integrity. The celebration of the Centenary of this High Court in a befitting
manner will, I am sure, go a long way towards further raising the reputation
of, and respect for, this High Court not only in this country, but also in foreign
countries.
'S'
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ATTORNEY GENERAL,
INDIA.
New Delhi,
September 3 , 1966
MESSAGE
I rejoice no less than the members of the Bar in Uttar Pradesh at the
celebration of the Centenary of the Allahabad High Court. It is a Court
with great traditions and many have been the famous Advocates who have
practised there and who also have taken their full share in public life. The
names that spring to one’s mind immediately are those of Pandit Moti Lai
Nehru and Sir Tej Bahadur Sapru. There are many more. The High
Court has a history of legal learning and sound judgments, a number of
which are even cited today as authorities of great weight. It has had many
judges whose names have been famous in the legal profession from genera-
tion to generation. I express a hope with confidence that notwithstanding
the tremendous increase in work and the corresponding increase in the number
of judges which makes it the largest High Court in the country, it will con-
tinue in the same high traditions of judicial learning, efficiency and integ-
rity and that it will continue to have the assistance of an independent and
efficient Bar.
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“Planning of the Centenary Celebrations”
By
MR. JUSTICE SHIVA NATH KATJU
Secretary , Planning Committee for the Centenary Celebrations
|gr 38 HE High Court of Judicature for the North-Western Provinces
was constituted by a Royal Charter issued by Her Majesty
Queen Victoria on March 17, 1866. The newly constituted High
Court replaced the Sadar Diwani Adalat at Agra on June 13, 1866.
After sometime the High Court shifted from Agra to Allahabad. It
appears that all the Judges did not come together to Allahabad. The
transfer from Agra to Allahabad appears to have occurred in stages.
Furthermore we do not know the exact place where the High Court
sat when it shifted to Allahabad. It was later that the old High
Court building was constructed on the Queens Road where the
Court sat till it shifted to the present buildings on November 27,
1916. The opening ceremony of the present High Court building
which synchronised with the Golden Jubilee of the High Court was
performed by Lord Chelmsford, the then Viceroy of India. The next
50 years of the Allahabad High Court were eventful in several
respects. It saw the first Indian Chief Justice in Sir Shah Mohammad
Sulaiman. The Chief Court of Oudh was amalgamated with the
Allahabad High Court, thereby forming the highest Judicial Tribu-
nal for the entire State of Uttar Pradesh and, lastly, the country
emerged as a full sovereign State and the Indian tricolour was raised
over the High Court building.
On the approach of the completion of the first hundred years of
the High Court, steps were taken to celebrate the Centenary of the
Court in a befitting manner. The then Chief Justice, Hon’ble
Mr. M. C. Desai, constituted a Planning Committee for the Centenary
Celebrations which held its first meeting under the Chairmanship of
the Chief Justice on December 14, 1963. The Chief Justice nomi-
nated Mr. Justice Jagdish Sahai, Mr. Justice Shiva Nath Katju,
Sri Kanhaiya Lai Misra, Advocate -General, U. P., Sri Chaudhary Hyder
Husain, President of the Oudh Bar Association and Sri S. C. Khare,
Secretary of the High Court Bar Association as the members of
the Committee. The broad outlines of the Centenary Celebrations
were chalked out at the first meeting. Mr. Justice Shiva Nath Katju
was nominated as the Secretary of the Committee by the Chief
Justice. At the second meeting of the Committee on August S,
1964, it was tentatively decided to hold the Centenary Celebra-
tions in January, 1966, and the dates fixed were 29th, 30th and 31st
January, 1966. Some doubt was expressed about the holding of the
Centenary Celebrations before the actual completion of the hundred
years of existence. The High Court had come into existence on
March \'] i 1866. It was not possible to hold the Centenary Celebra-
tions in the month of June which is particularly hot at Allahabad.
The Indo-Pakistan conflict broke out in September, 1965, and
it ruled out all possibilities of holding the celebrations in January,
1966. With the concurrence, of the opinion of the Bar, it was
. 11
finally decided to hold the Centenary Celebrations on November 25,
26 and 27, 1966.
Sri Shyam Nath Kacker, the Secretary of the High Court Bar
Association became a member of the Planning Committee in place of
the outgoing Secretary Sri S. C. Khare. The Chief Justice decided
to make a change in the constitution of the Committee and asked the
Bar Association to suggest the names of three persons for being
included as members of the Committee. The Association elected Sri
Gopinath Kunzru, Sri Shambhu Narain Misra and Sri Ganesh Prasad
as its representatives and the aforesaid three persons were nomi-
nated as members of the Planning Committee by the Chief Justice.
Sri Jai Shankar Trivedi, Advocate of the Lucknow Bench was nomi-
nated as an alternate member of the Committee along with Sri
Chaudhary Hyder Husain.
On the retirement of Chief Justice Mr. M. C. Desai, Chief
Justice, Mr. V. Bhargava became the Chairman of the Planning
Committee. He was elevated to the Bench of the Supreme Court
of India and his successor the present Chief Justice Hon’ble Mr.
Nasirullah Beg became the Chairman of the Committee. On the death
of Sri Chaudhary Hyder Husain, the Chief Justice nominated Sri Jai
Shankar . Trivedi and Sri Har Govind Dayal Srivastava as members of
the Committee. Thus the Committee consists of the following
persons :
1. Mr. Justice Nasirullah Beg, Chief Justice [Chairman).
Mr. Justice V. G. Oak [Alternate Chairman).
2. Mr. Justice Jagdish Sahai.
3. Mr. Justice S. N. Katju [Secretary).
4. Sri Kanhaiya Lai Misra, Advocate-General of U. P.
5 . Sri Gopinath Kunzru, Advocate.
6. Sri Shambhu Narain Misra, Advocate.
7. Sri Ganesh Prasad, Advocate.
8. Sri Jai Shankar Trivedi, Advocate, Lucknow Bench.
9. Sri Har Govind Dayal Srivastava, Advocate, Lucknow
Bench.
Officers attached to the Committee
1. Sri Bani Bilas Misra, Registrar, High Court.
2. Sri Kanhaiya Lai Chaudhry, Deputy Registrar, High
Court, Allahabad.
Official attached to the Secretary
3. Sri Rais Ahmad Khan.
It had been decided at the first meeting of the Committee to
hold an Exhibition of Court records. A miniature exhibition of
Court records was held in the Judges’ Library room which was opened
by Chief Justice Sri M. C. Desai on October 1, 1964 at a cere-
mony held in the Marble Hall of the Court. Incidentally this was
the first function held in connection with the Centenary Celebra-
tions. The miniature exhibition was held with a view to find out
the best way to display the Court records and to get an idea as to
what particular records would serve the purpose. All the District
Judges were asked by the High Court to send lists of the old records
in their record rooms and several old files were sent for from the
districts from which suitable papers were picked for display in the
Exhibition.
It was decided to publish photographs of all the Judges of the
Court beginning from 1866. The photographs of several old Judges
were not available and the former Chief Justice Sir Orby Howell
Mootham was requested to help in securing the necessary photographs
from the relatives of the old Judges. It was thought that the only
surviving retired Judges in the United Kingdom were Sir Orby
Howell Mootham and Sir Henry Braund. Sir Orby Howell
Mootham informed the Secretary that it was not possible for him to
secure the photographs of the old Judges and the best way to get
them was to put in notices in some of the leading papers in the
United Kingdom. The Secretary sought the help of Sardar Swaran
Singh, the Union External Affairs Minister, who directed the Indian
High Commission in U. K. to put in the necessary notices in some
of the important papers of United Kingdom. Such notices were pub-
lished in the ‘London Times’, ‘The Daily Gazette’ and ‘Manchester
Guardian’ and the response was much more than could be expected.
It was a pleasure to hear from Sir Douglas Young, Mr. Justice
Pullan, Mr. Justice Plowden and Mr. Justice J. R. W. Bennet, parti-
cularly, when the Court had lost all contacts with them. It was very
touching to receive letters from the members of the family of the
old Judges who very kindly sent photographs of the retired
Judges.
With the approach of the Centenary Celebrations it was
decided to form various Sub-Committees which were constituted by
the Chief Justice. The work was split up and entrusted to the
following Sub-Committees :
Sub-Committee
1. Guests Reception
2. Commemoration Volume
3. Seminar and Lectures
4. Exhibition
5. Cultural Programmes
6. Lucknow
7. Pandal and Seating
8. Building Decoration
Convener
Hon’ble Mr. Justice V. G. Oak.
Hon’ble Mr. Justice Jagdish Sahai.
Hon’ble Mr. Justice Gyanendra Kumar.
Hon’ble Mr. Justice Jagdish Sahai.
Hon’ble Mr. Justice S. N. Katju.
Hon’ble Mr. Justice K. B. Asthana.
Hon’ble Mr. Justice B. Nigam.
Hon’ble Mr. Justice Bishambhar Dayal.
Hon’ble Mr. Justice J. N. Takru,
Sub-Committee
Convener
9, At Home and Entertainment. ... Hon’ble Mr. Justice V. G. Oak.
10. Incharge Guests in High Court Hon’ble Mr. Justice D. P. Uniyal.
Buildings.
11. Celebrations in the Mofussil Hon ble Mr. Justice D. S. Mathur.
Courts.
12. Cricket ... Hon’ble Mr. Justice M. H. Beg.
MEMBERS OF THE PLANNING COMMITTEE
1. Hon’ble Mr. Nasirullah Beg, 5.
Chief Justice (Chairman). 6.
2. Hon’ble Mr. Justice V. G. Oak 7.
(Alternate Chairman ). 8.
3. Hon’ble Mr. Justice Jagdish Sahai. 9.
4. Hon’ble Mr. Justice S. N. Katju
(Secretary). 10.
Sri K. L. Misra, Advocate-General.
Sri Gopi Nath Kunzru, Advocate.
Sri S. N. Misra, Advocate.
Sri Ganesh Prasad, Advocate.
Sri Har Govind Dayal Srivastava,
Advocate, Lucknow.
Sri Jai Shanker Trivedi, Advo-
cate, Lucknow.
Officers Attached
1. Sri B. B. Misra, Registrar. 2. Sri K. L. Chaudhry, Deputy
Registrar.
Official Attached
Sri Rais Ahmad, P. A. to Secretary.
MEMBERS OF THE SUB COMMITTEES
Guests Receiption
1.
Hon'ble Mr. Nasirullah Beg, Chief
10.
Mr.
Raja Ram Agarwal, Advocate.
Justice.
11.
Mr.
Ganesh Prasad, Advocate.
2 -
Hon’ble Mr. Justice V. G. Oak
13.
Mr.
S. N. Misra, Advocate.
(Convener).
1 3-
Mr.
Z. H. Kazmi, Advocate.
$■
Hon’ble Mr. Justice S. S. Dhavan.
14.
Mr.
V. K. S. Chaudhry, Advocate.
4-
Hon’ble Mr. Justice W. Broome.
15-
Mr.
Laxmi Saran, Advocate,
5.
Hon’ble Mr. Justice R. S. Pathak.
16.
Mr.
J. K. Srivastava, Advocate.
6.
Munshi Ambika Prasad, Advocate.
17-
Mr.
G. P. Tandon, Advocate.
7
Mr. C. S. Saran, Advocate.
18.
Mr.
R. Pandey, Advocate.
8 .
9-
Mr. Brij Bhan Kishore, Advocate.
Mr. S. N. Kacker, Advocate.
19-
Mr.
Brij Lai Gupta, Advocate.
Officers Attached
i. Sri B. N. Puri, Secretary to 5. Sri S. Abel, Assistant Registrar.
Hon’ble Chief Justice.
Commemoration Volume
1. Hon’ble Mr. Justice Jagdish Sahai
(Convene}).
2. Hon’ble Mr. Justice S. N. Dwivedi.
3. Hon’ble Mr. Justice Gyanendra
Kumar (Convener).
4. Mr. K. L. Misra, Advocate-
General.
5. Mr. Har Govind Dayal Srivas^ava,
Advocate.
6. Mr. A. Banerji, Advocate.
7. Mr. S. N. Verma, Advocate.
8. Mr. Gur Dayal Srivastava, Advo-
cate.
9. Mr. M. N. Shukla, Advocate.
10. Mr. H. K. Ghosh, Advocate.
11. Mr. N. D. Ojha, Advocate.
15. Mr. Gopal Behari, Advocate.
13. Mr. H. P. Dubey, Advocate.
Officers Attached
1. Mr. K. L. Chaudhry, Deputy 5. Mr. S. Abel, Assistant Registrar.
Registrar.
Official Attached
Mr. Narsingh Bahadur, Personal Assistant.
Seminar and
1. Hon’ble Mr. Nasirullah Beg, Chief
Justice.
2. Hon’ble Mr. Justice Jagdish Sahai
(Convener).
3. Hon’ble Mr. Justice S. S. Dhavan.
4. Hon’ble Mr. Justice B. D. Gupta.
5. Hon’ble Mr. Justice Gangeshwar
Ptasad.
Lectures
6. Hon’ble Mr. Justice H. C. P. Tri-
pathi.
7. Mr. Jagdish Swarup, Advocate.
8. Mr. S. C. Khare, Advocate.
g. Mr. K. K. Bhattacharya, Advocate.
10. Mr. M. Asif Ansari, Advocate.
11. Mr. O. N. Mehrotra, Advocate.
15. Mr. Swami Dayal, Advocate.
13. Mr. S. K. Dhaon, Advocate.
Officials Attached
1. Sri S. D. Dixit.
5. Sri Ram Chandra, Librarian.
Exhibition
1. Hon’ble Mr. Justice S. N. Katju 6.
(Convener). 7 *
2 . Hon’ble Mr. Justice Mahesh 8.
Chandra. 9.
3. Hon’ble Mr. Justice D. D. Seth. 10.
4. Hon’ble Mr. Justice Yashoda- 11.
nandan. 12.
5. Mr. Satyendra Nath Verma, Advo- 13.
cate.
Mr. Amitav Banerjee, Advocate.
Pt. N. D. Ojha, Advocate.
Mrs. R. D. Gupta, Advocate.
Mr. Prabodh Gaur, Advocate.
Mr. Keshav Sahai, Advocate.
Mr. P. N. Misra, Advocate.
Mr. K. C. Agarwal, Advocate.
Mr. Om Prakash Gupta, Advocate-
Officer Attached
Mr. E. L. Chaudhry, Deputy Registrar.
Official Attached
Mr. Rais Ahmad.
Cultural Programmes
1. Hon’ble Mr. Justice K. B. Asthana
(Convener).
2 . Hon’ble Mr. Justice G. C. Mathur.
3. Hon’ble Mr. Justice Satish Chandra.
4. Hon’ble Mr. Justice H. C. P. Tri-
pathi.
5. Mr. Hari Swarup, Advocate.
6. Mr. Swami Dayal, Advocate.
7. Dr. R. Dwivedi, Advocate.
8. Mr. Narendra Kumar, Advocate.
9. Mr. Kedar Nath Sinha, Advocate,
10. Miss N. A. Rahman, Advocate.
Officer Attached
Mr. M. P. Tandon, Deputy Registrar.
LUCKNOW
1. Hon’ble Mr. Justice B. Nigam 8.
{Convener). 9.
2 . Hon’ble Mr, Justice R. A. Misra, 10.
3. Hon’ble Mr. Justice L. P. Nigam. 11.
4. Hon’ble Mr. Justice Uma Shankar 15.
Srivastava.
5. Hon’ble Mr. Justice R. N. Sharma. 13.
6. Hon’ble Mr. Justice Rameshwar
Chandra. 14,
7. Sri H. K. Ghose, Advocate.
Sri H. D. Srivastava, Advocate.
Sri S. D. Misra, Advocate.
Sri S. C. Das, Advocate.
Sri J. S. Trivedi, Advocate.
Sri Syed Mohammad Husain, Advo-
cate.
Sri Balram Krishna Mathur, Advo-
cate.
Sri Murli Manohar Lai, Advocate,
Officer Attached
Sri Virendra Kumar, Deputy Registrar.
Pandal and Seating
i* Hon’ble Mr. Justice Bishambhar 6. Mr. Krishna Sahai, Advocate.
Dayal (Convener),
2. Hon’ble Mr. Justice T. Ramabhad- 7. Mr. Hriday Nath Seth, Advocate,
ran.
3. Hon’ble Mr. Justice H. G. P. Tri- 8. Mr. Vijay Kumar Burman, Advo-
pathi. cate.
4. Hon’ble Mr. Justice S. D. Khare. 9. Mr. H. P. Dubey, Advocate.
5. Hon’ble Mr. Justice S. N. Singh. 10. Mr. Ganesh Prasad, Advocate.
Officers Attached
1. Mr. M. L. Agarwal, Joint Registrar. o. Mr. S. N. Srivastava, Assistant
Registrar.
Building Decoration
1. Hon’ble Mr. Justice Bishambhar
6.
Mr.
K. B. L. Gaur, Advocate.
Dayal.
7-
Mr.
S. K, Dhaon, Advocate.
2 . Hon’ble Mr. Justice J. N. Takru
8.
Mr.
Janardan Swarup Gupta,
(Convener).
Advocate.
3. Hon’ble Mr. Justice Gyanendra
9-
Mr.
Tribeni Shanker, Advocate,
Kumar.
Civil
Courts, Varanasi.
4. Mr. K. N. Seth, Advocate.
10.
Mr.
Jay anti Prasad, Advocate,
5. Mr. Yudhisthira, Advocate.
Civil
Courts, Meerut.
Officer Attached
Mr. S. K. P. Joshi, Deputy Registrar.
At Home and Entertainment
iv Hon’ble Mr. Justice V. G. Oak 6. Pt. Tej Narain Sapru, Advocate.
(Convener). 7- Pt. Shri Shanker Tiwari, Advocate.
2. Hon’ble Mr. Justice S. K. Verma. 8. Mr. Lalji Sinha, Advocate.
3. Hon’ble Mr. Justice S. C. Man- 9. Mr. G. N. Verma, Advocate,
chanda. 10. Mr. Shamshuddin, Advocate.
4. Hon’ble Mr. Justice S. N. Katju. 11. Mr. R. N. Mulla, Advocate.
5. Pt. P. C. Chaturvedi, Advocate. 1 2. Mr. Ganesh Prasad, Advocate.
ix
Officer Attached
Mr, A. N. Kapoor, Deputy Registrar.
Official Attached
Mr. K. P. Mehta, Superintendent, Administrative Department.
Incharge Guests in High Court Building
1. Hon’ble Mr. Justice D. P. Uniyal 7. Mr. J. K. Srivastava, Advocate.
(Convener). 8. Mr. V. P. Tewari, Advocate.
st. Hon’ble Mr. Justice G. C. Mathur. 9. Mr. C. S. P. Singh, Advocate.
3. Hon’ble Mr. Justice Hamidullah 10. Mr. Gur Dayal Srivastava, Advo-
Beg. cate.
4. Hon’ble Mr. Justice Rajeshwari 11. Mr. Pravin Chaturvedi, Advocate.
Prasad. 12. Mr. B. N. Katju, Advocate.
5. Mr. Shambhu Prasad, Advocate. 13. Mr. D. N. Sanyal, Advocate.
6. Mr. Shanti Bhushan, Advocate.
Officer Attached
Mr. C. P. Srivastava, Deputy Registrar.
Celebrations in the Mofussil Centres
1. Hon’ble Mr. Justice D. S. Mathur 4. Mr. Baleshwari Prasad, Advocate.
(Convener). 5. Mr. Shanti Swaroop Bhatnagar,
st. Hon’ble Mr. Justice C. B. Capoor. Advocate.
3. Hon’ble Mr. Justice G. D. Sahgal. 6. Dr. Rishi Ram Mishra, Advocate.
Officer Attached
Mr. M. P. Tandon, Deputy Registrar.
Cricket Match
1. Hon’ble Mr. Nasirullah Beg, Chief 8. Sri P. N. Katju, Advocate.
Justice. 9. Sri I. A. Abbasi, Advocate,
st. Hon’ble Mr. Justice S. N. Katju. Lucknow.
3. Hon’ble Mr. Justice Hamidullah 10. Sri S. L. Suri, Advocate, Lucknow.
Beg (Convener). 11. Sri B. N. Sapru, Advocate.
4. Sri K. L. Misra, Advocate-General. 1 st. Sri T. N. Sapru, Advocate.
5. Sri Laxmi Saran, Advocate. 13. Sri K. B. L. Gaur, Advocate.
6. Sri Amitav Banerji, Advocate. 14. Sri L. P. Naithani, Advocate.
7. Sri A. N. Verma, Advocate. 15. Sri V. K. Burman, Advocate.
Officer Attached
Sri S. Abel, Assistant Registrar.
Officials Attached
1. Sri Rais Ahmad. S- Sri D. S. Dube.
g. Sri J. P. Dube.
The entire work for holding the Centenary Celebrations involv-
ed a fairly heavy task in which the Government of India, the State
Government, Judges, Members of the Bar, and the Staff of the Court
have fully co-operated.
Sri K. L. Misra, Advocate
General
Pt. Gopi Nath Kunzru,
Advocate, High Court,
Allahabad
Sri S. N. Misra, Advocate,
High Court, Allahabad
Sri B. B. Misra, Registrar,
High Court
Sri Ganesh Prasad, Advocate, Sri Har Govind Dayvl Sri Jai Shanker Trivedi,
High Court, Allahabad Srivastava, Advocate, Advocate High Court,
High Court. Lucknow Lucknow Bench } Lucknow
Sri K. L. Chaudhry, Deputy
Registrar, High Court,
Allahabad
MEMBERS OF COMMEMORATION VOLUME
COMMITTEE
Mr. H\rih\r Pr^su
Advocate
Mr. M. N. Shukla, Advocate
Mr. Gur Dayal Srivastava ;
Advocate
Mr. K. L. Chaudhry,
Deputy Registrar
(At r ached to Comm l n ee)
Members of Siib-Commi'i iees, Cenienary Cerebrations, IIk;ii Coi»ri\ Aii.wi\bai>
Members of Sub-Committees, Centenary Celebrations, High Court, Ailahab
Members of Sijb-Committff, O.n'ienxry Cei fbkaiions, Hic.ii Covin'. Lucknow Bench
INTRODUCTORY NOTE
on the
High Court of Judicature at Allahabad
f|HE High Court of Judicature at Allahabad is the fourth oldest
and the last Chartered High Court in India, created under
the Indian High Courts Act, or the Charter Act, 1861 (24 & 25 Viet.
C. 104)*, s. 16. When the British acquired the areas, -which, from
1835, came to be known as the North-Western Provinces of the
Presidency of Fort William in Bengal, the administration of justice
in these areas came under the jurisdiction of the Supreme Court of
Judicature at Fort William and the Courts of Sadar Dewani Adalat
and Sadar Nizamat Adalat of the Presidency of Bengal. However,
a separate Sadar Dewani Adalat and Sadar Nizamat Adalat were
established for the North-Western Provinces on January 1, 1832.
* Repealed by the Government of India Act, 1915 (5 8 c 6 Geo, V. C. 61), s. 130.
Ill 1856, Oudh came under British suzerainty and a Judicial Com-
missioner’s Court was created at the apex of the judicial set-up
in that province. By the Letters Patent issued on the 14th of
May, 1862 by Her Majesty Queen Victoria, the High Court of Judi-
cature at Fort William in Bengal was constituted ; and temporarily
the North-Western Provinces also, came under the jurisdiction of that
High Court for certain purposes. A separate High Court of Judi-
cature for the North-Western Provinces was constituted at Agra by
Letters Patent of Her Majesty, dated the 17th of March, 1866 ; but
Oudh continued to remain under the Judicial Commissioner as before.
In 1902, Oudh and the North-Western Provinces were merged
in one Province, known as the United Provinces of Agra and Oudh, but
the judicial administration remained separate. The High Court of
Judicature for the North-Western Provinces sat at Agra from 1866 to
1868 and thereafter at Allahabad. On being moved to Allahabad in
1869, the High Court was located in a building on the SarojiniNaidu
Marg (Queen’s Road) near the buildings in which the U. P. Secretariat,
Board of Revenue and other offices of Government were situate. On
the 1 8 th of March, 1911, Sir John Stanley, k.c., thethen Chief Justice
laid the foundation-stone of the present High Court building, which
was opened by His Excellency Lord Chelmsford, Viceroy and Governor-
General of India, on the 27th of November, 1916, during the Chief
Justiceship of Sir Henry Richards, k.c. The two courts — the Oudh
Chief Court, which replaced the Judicial Commissioner’s Court
in 1925, and the Allahabad High Court— were amalgamated on the
26th of July, 1948 ; and later a new wing was added to the High
Court building, the opening ceremony of which was performed by
the President Dr. Rajendra Prasad on 21st February, 1954.
When the High Court formally replaced the Sadar Diwani Adalat
on the 13th of June, 1866, the Judges quietly walked in and took
their seats as if leaving the ceremonies for posterity. The Court
made a modest beginning with six Judges, including the Chief Justice,
Sir Walter Morgan. The number of Civil Appeals before the High
Court then was 3,112. In 1915 it rose to 4,646. Criminal cases were
1,001 in number in 1866 and the figure rose to 4,271 by 1915. The
number of Subordinate Courts under the supervision of the Court,
which was 350 in 1866, increased to 1,276 by 1915. At the time of
move to Allahabad, the number of Advocates on the roll of the High
Court was six. There was also the Vakils’ Bar consisting of ‘Urdu-
speaking’ Vakils of the earlier Court led by Maulvi Haider Husain,
grandfather of Sir Nawab Mohammad Yusuf of Jaunpur.
As years rolled by, the volume of work considerably increased ;
and with the advent of the new Constitution followed by the
reorganisation of the States, this Court today occupies the position of
the biggest High Court in India— as the Highest Court in a State with
a population of 7,37,90,000 sharing with the Supreme Court and the
sister Courts the duty of enforcing the Rule of Law. The present
strength of Judges is now 38 (including 14 Additional Judges) as
against 6 of the year 1866. There are now 404 Subordinate Courts
spread throughout the State under the supervision of the High Court
and the number of Advocates on roll has gone up to 10,546. The
spacious and commodious building is now found to be inadequate for
the growing needs of the Court and it is proposed to add more court
rooms, chambers and office rooms to the present Court building.
The Court has had a glorious past with a galaxy of eminent Judges who
acquired lasting fame in the judicial field, such as Morgan, Stanley,
Mahmud, Edge, Henry Richards, Lindsay, P. C. Banerji, Sulaiman,
Lai Gopal Mukerji and many others.
Judges from this Court have from time to time gone to the
Privy Council, Federal Court and the Supreme Court of India and
adorned the Chair of the Chief Justice in different High Courts.
The Bar of this Court justly occupies a place of pride. Eminent
lawyers, like Pt. Ajodhya Nath, Sir Sunder Lai, Pt. Moti Lai, Sir Tej
Bahadur Sapru, whose names are enshrined in the annals of our
country, practised for several years in this Court and made valuable
contributions not only in legal sphere but also in other walks off life.
The first Prime Minister of the country was also for 7 years a member
of the Bar of this Court. All of them helped in building up the
traditions which can be the proud possession of any Court. Dr.
Kailas Nath Katju and Dr. N. P. Asthana are members of that galaxy
who are fortunately still amongst us. The subordinate Judiciary
controlled by this Court is held in high esteem and helps to keep
the balance of justice even. Despite the stress and strain of times
the staff of the Court is devoted to work and has played its part well.
Now that the Court has completed a century of its existence it
can recall the past with a feeling of satisfaction and pride and look
ahead with hopes of a brighter future.
Judges of tiie High Court, Allahabad, u)(>(>
Judges of the High Court Allahabad (Lucknow Bench)
(1966)
PHOTOGRAPHS OF THE HON’BLE CHIEF JUSTICES
( 1866 — 1966 )
The Hon’ble Sir Walter Morgan
(1866 — 1871)
The Hon’ble Sir Robert Stuart
The Hon’ble Sir William Comer Petheram
(1884—1886^
The Hon’ble Sir John Edge
(1886-1898)
The Hon’ble
Sir Louis Addin Kershaw
(1898)
The Hon’ble
Sir Arthur Strachey
////
I he Hon’ble Sir Henry Richards
(1911—1919)
The Hon’ble Sir Edward Grlmwood Mears
(1919—1932)
The Hon ’bee
Sir Shah Mohammad Sul aim an
(1932—1937)
The Hon’ble
; Gibb Thom
The Hon’ble
Sir Iqbal Ahmad
(1941—1946)
PHOTOGRAPHS OF THE HON’BLE JUDGES
(1866— 1966)
The Hon’ble
Sir Rich\rd Charles
Oldfield (1882—1887)
The Hon’ble
Mr. Justice Syed Mahmood
The Hon'b-le
Sir George Edward
Knox (1890 — 1921)
Bottom — Left to right
The Hon'ble Mr. Justice William Young
(1890)
The Hon'ble Mr. Justice Harrison Falkner
Blair (1892—1905)
The Hon’ble Sir Pramoda Charan Bannerji
The Hon'ble Mr. Justice Cursetjee
Rustomjee (1906)
The Hon'ble
Sir Henry Daly Griffin
(1908—1914)
Top -Left to right
The Hon’ble Sir William Robert
Burkitt (1895—1908)
The Hon'ble Mr. Justice William
Blennerhassett (1896-1897)
The Hon'ble Sir Robert Smith
Airman (1896—1909)
The Hon'ble
Mr. Justice Syed Karamat Husain
(1908— igu)
y •»
Top— Left to right
The Hon’ble Sir Charles Ross
Alston (1909)
The Hon'ble Sir William Tudball
(1909— igss)
The Hon'ble Sir Edward Maynard Des
Chamier (1910 — 1915)
The Hon'ble
Mr. Justice Syed Mohd. Rafiq
(1913—1933)
The Hon’bi.e
Mr. Justice Henry Ward LylE
('913)
The Hon'ble
Mr. Justice Theodore Caro
Piggott (1914 — 19 ^ 5 )
"t+H
The Hon’ble Sir Sender Lall
(igifi)
Middle — Left to right
The Hon’ble Sir Cecil Henry
Walsh (1916 — 1938)
The Hon’ble Mr. Justice Alfred Edward
Ryves (1920 — 1925)
The Hon’ble
Mr. Justice Benjamin Lindsay
The Hon’ble
Mr. Justice William Wallach
Middle — Left to right
The Hon’ble Sir Louis Stuart
(1923 — 1938)
The Hon’ble Mr. Justice Everard Reginald
Neave (1924)
The Hon’ble Mr. Justice Kanhaiya Lal
(1 9*4—19*6)
The Hon’ble
Sir Barjor Jamshedjee
Dalal (1925—1931)
The Hon’ble
Mr. Justice Sidney Reginald
Daniels (1925 — 1928)
IBS
Thl Hov'bie
Sir L\l Gop\l Mlkerji
U926—1934)
The Hon’ble
Mr. Jusiice Guy Ponsonby Bo\s
(1926—1933)
The Hon’ble
Mr. Justice Lalit Mohan Bannerji
(1926—1933)
BoiTOM-Le/f to right
The Hon’ble Mr. Justice Ernest Horatio.
Ashworth (1926—1929)
The Hon'ble Mr. Justice Surendra Nath Sen
(1927-1932)
The Hon’ble Mr. Justice John Charles Weir
V» ;
' )' ”•
Top— Left to light
The Hon’ble Mr. Justice Barthold
Schlesinger Kisch (1934-1935)
The Hon’ble Mr. Justice Rachpal Singh
< 1 934 — 1940 )
The Hon'ble Sir Arthur
Trevor Harries (1934 — 1938)
The Hon’ble
Sir Harold James Collister
(1935—1944)
The Hon’bi.e
Mr. Justice Harold Gordon Smith
( 1935 — 193 6 )
The Hon’ble
Sir James Joseph Whittlesea
Allsop (1935—1947)
Top —Left to right
The Hon'ble Mr. Justice Uma Shanker
Baipai (1937—1943)
The Hon'ble Mr. Justice Ganga Nath
(1937 — >942)
The Hon’ble Mr. Justice Mohammad Ismail
( ] 937 — * 944 )
The Hon'ble
Mr. Justice Tika Ram Misra
(1938)
The Hon’ble
Mr. Justice Tej Narain Mulla
(1940—1947)
Sir Henry Benedict
Linthwaite Braund (1939 — 1947)
Tiie Hon’ble
Tnr Hox'iiir
Mr. jisncE Vrchibai n Htnra Of Bi rrui
Hwiii toN 11940 — 19461
The Hon'bie
Mr. Justice Shum Krishna Dar
( 1940— 1944)
The Hon’bie
Mr. Jus 1 ice Robert Langdon Yorke
(1942—1947)
Bottom —Left to u^ht
The Hox’ble Mr. Justice Phii.i ip Peier
Meredyth Chichei.f Pi. o when
(1942—1944)
The Hox’ble
Mr. Justice Girisii Prasad Mathlr
(1942—1947)
The Hon ’bi.e
Mr. Justice John Reginald Wiliiam Bennett
(1944-1947)
The Hon’ble
Mr. Justice Gopal Swaruf Pathak
(1945-1946)
Bottom— j Left to right
The Hon’ble Mr. Justice Mansur Alam
(1946)
The Hon’ble Mr. Justice Sankar Saran
(1946—1953)
The Hon’ble Mr. Justice Raghubar Dayal
(1946—1960)
I he Hovble
Mr. Ji stick Mohwimu) Wai ih.i \n
f'im— *95*)
Harish Chandra
Middle-
The Honble Mr. Justice Prakash Narain
Sapri: ( 1947 — 1 954 )
The Hon’ble Mr. Justice Kailash Nath
Wanchoo (1947—195°)
The Hon’ble
Mr. Justice Bind Basni Prasad
( 1947 - 1953 )
The Hon’ble
Mr. Justice Ghulam Hasan
(1948—1951)
The Hon’ble Mr. Justice Lakshmi Shankar
Misr\ (1918—1952)
Middle
The Hon’jblk xMr. Jusiice Praduman Kish an
Kaul (1948—195°)
[ice Mubashir Husain
Kidwai (1948—1957)
The Hon’ble Mr. Jusiice Santius Bulghand
Chandiramani ( 1 948 — 1 952)
The Hon’ble
Mr. Justice Siiambhu Nath Setii
(1948—1951)
The Hon’ble
Mr. Justice Chandra Bhan
Agarwal (1948—1957)
Top —Left to right
The Hon’ble Mr. Justice Piarelal Bhargava
(1948—1953)
The Hon’ble Mr. Justice Mushtaq Ahmad
(1948—1958)
The Hon’ble Mr. Justice Brij Mohan Lall
(1950—1956)
The Hon’ble Mr. Justice Ram Narain Gurtu
( 195 1 —
The Hon’ble
Mr. Justice Basudeva Mukerji
(1952—1963)
The Hon’ble
Mr. Justice Misri Lal Chaturvedi
(>952—1959)
Top— Left to right
The Hon’ble Mr. Justice Hari Shankef
Chaturvedi (195^—1957'
The Hon’ble Mr. Justice Atma Chara?
(1958—1954:
The Hon’ble Mr. Justice Randhir Singe
( 1953 — 1958 '
The Hon’ble
Mr. Justice Harnath Prasad
Asthana (1953—195 8 )
The Hon’ble
Mr. Justice Dwijendra Nath Roy
(1953—1960)
The Hon’ble
Mr. Justice Gopalji Mehrotra
(1954—1957)
The Hon'ble
rsncE Vidyadhar Gownd Oak
Middle — Left to ) ight .
The Hon'ble Mr. Justice Ambika Prasad
Srivastava (1956 — 1963)
The Hon’ble Mr. Justice Jagbans Kishore
Tandox (1956 — 1961)
The Hon’ble Mr. Justice Jagdish Sah.ai
The Hon’ble
Mr. Justice Bishambhar Dayal
( 1 957 — )
The Hon’ble
Mr. Justice Jawahar Nath Takru
(1957 — )
The Hon’ble
Bisiiw Xarain Nig am
Middle-
The Hon’ble Mr. JrsncP. Shanti Swarup
Dhw.an (1958— )
The Hon’ble Mr. Jisiice Shashi Kam a Verm a
(*9r>8“ )
The Hon’ble Mr. Jusiice William Broome
(1958- )
The Hon’ble
Mr. Justice Dhatri Saran Mati
(i959“ )
Mr. Justice Debi Pra
i HE Ho\‘lH E
MR. JlSIKE Si RENDR \ \ \R \\ W
1)\\ l\ EDI (11)59 — j
Middle — Left to right
1 he Ho.n’bil Mr. Jisiice Ram Asrea Misra
SHCE K.AILASII PRASAD
Maihlr (i960 — 1963;
Tiie Hon'ble Mr. Justice Jhanih: Dait Sharma
(i960— 1 96a)
The Hon'ble
Mr. Justice Mitiian Lal
(1960—1963)
"The Hon Tee
Mr. Justice Shambhu
Dayal Singh (1961 — 1963)
us i ice Gy vnenura Kumar
The Hon’ble Mr. Justice Rvguunandan
SWARUP PATHAK (196a— )
The Hon’ble Mr. Justice Durgeshwar
Seth (1963— )
The Hon’ble
Mahesh Chandra
(1963— )
The Hon’ble
Mr. Justice Mirza Hamidullaii
Beg (1963— )
I he Hon’ble
Mr. Justice Ram Nath Sharma
(1963 — 1 9 66 )
Tor -Left to right
The Hon’ble Mr.. Justice Gursaran Das
Sahgal (1963— )
The Hon’ble Mr. Justice Shanker Dayal
Khare (1963— )
The Hon’ble Mr. Justice Cyan Chand Mathur
(1963— )
The Hon’ble
Mr. Justice Gangeshwar Prasad
(i9^3 — )
Bottom -Left to right
The Hon’ble Mr. Justice Chand Behari
Capoor (1963— )
The Hon’ble Mr. Justice Satish Chandra
(i9 6 3— )
The Hon’ble Mr. Justice Harish Chandra
Pati Tripathi (1963— )
The Hon'ble Mr. Justice Lakshmi Prasap
Nig am (1964 — )
Middle — Left to right
The Hon’ble Mr. Justice Surendra Xarain
Singh (1964 — )
The Hon’ble Mr. Justice Uma Sh anker
Srivastava (1965 — )
The Hon'ble Mr. Justice Rajeshwari Prasad
(1965— )
The Hon’ble
Mr. Justice Ramesi-iwar
Chandra (1965 — )
The Hon'ble
Mr. Justice Yashoda
Nandan (1966 — )
The Hon’ble Sir Walter Morgan
First Chief Justice
History of the High Court at Allahabad during
the Chief Justiceship of Sir Walter Morgan
( 1866 - 1871 )
By
SIR ARCHIBALD HENRY BENEDICT LINTHWAITE BRAUND
Ex-Judge , Allahabad High Court
The Letters Patent of the High Court of
Judicature of the North-Western Provinces
(17th March, 1866)
I 1 S>>|Y the High Courts Act, 1861, provision was made, not only
£ HO for the replacement o£ the Supreme Courts of Calcutta, Madras
and Bombay and for the establishment of High Courts in their
places, but for the establishment of a High Court by Letters Patent
in any other part of Her Majesty’s territories not already included in
the jurisdiction of another High Court. The Calcutta High Court
itself was established, in the place of the Supreme Court, by
Letters Patent of the 14th May, 1862. Four years later the High
Court of Judicature for the North-Western Provinces came into
existence under Letters Patent of the 17th March, 1866, replacing
the old Sudder Diwanny Adawlat.* These Letters Patent as
subsequently amended, are the Charter of the present High Court
of Judicature at Allahabad.
The first Chief Justice and Judges
of the New High Court
The first Chief Justice and Judges of the new High Court
of the North-Western Provinces were named in its Letters Patent.
They were — Sir Walter Morgan, Barrister-at-Law, Chief Justice ;
Alexander Ross, Bengal Civil Service; William Edwards, Bengal
Civil Service ; William Roberts, Bengal Civil Service ; Francis Boyle
Pearson, Bengal Civil Service ; and Charles Arthur Turner, Barrister-
at-Law, Judges. Of these, the four Bengal Civil Service Judges
were the four Judges of the existing Sudder Diwanny Adawlat
of the North-Western Provinces. Robert Spankie acted as an
officiating Judge from the beginning, until he was made a permanent
Judge of the High Court in 1867, in the place of Mr. Justice
Edwards.
Sir Walter Morgan
Sir Walter Morgan was born in the year 1821 and was,
therefore, forty-five when he became the first Chief Justice of the
Court. He was the son of Walter Morgan and was educated
at King’s College, London. He was called to the Bar by the Middle
Temple on the 18th November, 1841 : For some years he practised
as a conveyancer and “equity draughtsman.” He also went on
*The Sudder Diwanny Adawlat had been constituted for the North-Western Prov-
inces under Regulation VI, 1831.
the South Wales Circuit and attended the Glamorganshire Sessions.
On the 2nd July, 1852, he was admitted to the Bar of the Supreme
Court in Calcutta and in 1854 was appointed clerk of the Legislative
Council of India. He served in that capacity until 1859, when
he became a Master in equity to the Supreme Court in Calcutta.
In 1861 he published, with Mr. A. G. Macpherson,* a book on
the Indian Penal Code with Notes. In 1862 Sir Walter Morgan
was appointed one of the first Puisne Judges of the new Calcutta
High Court, and, in due course, became the first Chief Justice of
the North-Western Provinces, as mentioned above, by appointment
under the Letters Patent of 1866. He remained Chief Justice
of the North-Western Provinces until November, 1871, when
he was translated to Madras as Chief Justice of that Court, finally
retiring from Madras in 1879. In 1849 Sir Walter Morgan married
Ada Maria, the daughter of Mr. D. Harris. She died in 1884.
There is, however, no trace of her having been in Allahabad, while
Sir Walter Morgan was Chief Justice. Sir Walter Morgan died
in London on the 28th October, 1906, at the age of 85. He had
one son, also Walter Morgan, who became Deputy Registrar
of the Appellate Side of the Madras High Court in 1892.
Mr. Justice Turner
Mr. Justice Turner was the first barrister judge appointed
to the new High Court direct from England. He was the son
of the Revd. John Fisher Turner and was born at Exeter on the
6th March, 1833. He was educated at Exeter Grammar School
and at Exeter College, Oxford, of which he became a fellow in
# Mr. A. G. Macpherson later became one of the first Judges of the Calcutta High
Court.
1855* He was called to the Bar by Lincoln’s Inn in 1858. He
was, therefore, of only eight years standing at the Bar when
appointed to the High Court and was only thirty-three years of age.
He remained a Judge of this High Court for over twelve years,
until in January, 1879 he succeeded his old Chief Justice, Sir
Walter Morgan, as Chief Justice of Madras. The new High Court
of the North-Western Provinces thus had the distinction of
providing two successive Chief Justices of Madras from its
original Bench within the first thirteen years of its existence. It is
evident from the files of the Pioneer that Mr. Justice Turner,
being much the youngest of the Judges, took a leading part in
the activities of Allahabad outside the Court and, before ceasing
to be Chief Justice of Madras in 1885, he had in 1880 become
Vice-Chancellor of Madras University. Sir Charles Turner was
in 1879, the year he left the Allahabad High Court, a member
of the Indian Law Commission, and in 1886 he was a member,
with Sir Charles Aitchison, of the Public Service Commission
appointed to examine the conditions under which Indians should
be admitted to the higher posts of the public service. In 1888
he became a member of the Council of India and retained that office
until 1898. He lived in London at No. 62, Ennismore Gardens
until he died on the 20th October, 1907 at the age of 74. He was
awarded a C. I. E. in January, 1878 and a K. C. I. E. in 1879
on becoming Chief Justice of Madras.
Supersession of the Sudder Diwanny Adawlat
by the High Court on the 11th June, 1866
The actual first appointments of the Chief Justice and Judges
of the new High Court dated from the 13th June, 1866, on
which day the old Sudder Diwanny Adawlat came to an end.
Though in 1857-58, Lord Canning, at the time of the Indian
mutiny, had assumed the government of the North-Western
Provinces at Allahabad, where it remained until it moved to
Lucknow, the Sudder Diwanny Adawlat still sat in 1866 at the old
capital at Agra. Though the Sudder Diwanny Adawlat ceased
to exist and the High Court formally replaced it on the 13th June,
1866, it was not for another three years that the transfer of the
new High Court to Allahabad was complete. It is a great pity
that the first volume of the new Law Reports of the High Court
does not contain any reference to the inauguration of the Court.
And there are unfortunately no records in the archives of the
High Court of the actual transition, except a copy of an official
memorial by the Sudder Judges of their thanks presented to the
‘Register’ (Registrar), Mr. J. Simson, of the Bengal Civil Service,
on the 7th June, 1866, “a few days” before the old Court ceased
to exist. This was, no doubt, a well earned testimonial, since
much of the organization of the change over must have fallen
on to the ‘Register’s’ shoulders.
Court first established at Agra
Mr. Simson became the first “Registrar” of the High Court
and so remained until he went on leave to Europe in March, 1867.
Meanwhile, the Court remained at Agra. Its last reported case
was a special appeal (Mashook Alley Khan and others v. Nowl.
Decisions, S. D. A. N. W. P. January to May, 1866, p. 159)
decided by Mr. W. Roberts* and Mr. F. B. Pearson* on the 31st
* The Judges of the Sudder Diwanny Adawlat were not “Justices,” which perhaps
accounts for the difficulty which the official services still find in according to Judges
of the High Court their proper titles of ‘Mr. Justice.’
May, 1866. The first reported case of the new High Court,
decided by Mr. Justice Pearson and Mr. Justice Spankie, was
heard on the 18th June, 1866. Both were uninteresting. The
principal difficulty in the way of the transfer to Allahabad was,
it seems, the housing of the new High Court, and its Judges.
The new High Court building at Allahabad
But the building of the new High Court and of the new
government offices, which are those excellent red rectangular two
storied buildings still to be seen in Queens Road, was proceeding.
The four blocks were designed by Colonel Peilej of the Public
Works Department, the two on the west of Queens Road as the
Government Secretariat and the Accountant General’s office
respectively, and those on the east as the High Court and the
Board of Revenue. They are said to have cost thirteen
lakhs, which by modern standards appears exceedingly cheap. The
old ‘Gazetteer’ of the North-Western Provinces relates that the new
High Court was completed about 1870. It, or part of it, was,
however, in all probability fit for occupation rather earlier than that
as Mr. Justice Pearson and Mr. Justice Turner had by November,
1868 arrived in Allahabad from Agra and were sitting here as a
Bench of the new High Court. The Court was, accordingly, in the
third year of its existence divided between Agra and Allahabad, the
Chief Justice and three Judges sitting at Agra and two Judges at
Allahabad. This led to a somewhat bitter leading Article in the
* The four large houses in Hastings Road, Allahabad, which have generally
been occupied by Judges of the High Court are believed to have been built about
this time and to be copies, on a rather larger scale, of the house occupied by one of the
Judges of the Sudder Diwanny Adawlat at Agra, now occupied by the District Judge
of Agra.
‘Pioneer’ of the 23rd November, 1868, complaining of the disadvant-
age to litigants and lawyers of a divided Court, even suggesting
that the Chief Justice might be too comfortably housed at Agra to
wish to hasten his move. The house occupied by Sir Walter Mor-
gan at Agra on Drummond Road, near the District Courts, is believ-
ed to be the house known as ‘Grant’s Castle’, which still stands and
is a palatial house in large grounds now the property of the younger
brother of the Raja of Avagarh. The original court-room of the
first Chief Justice of the High Court is believed to have been the
present court-room of the District Judge of Agra, which is by no
means spacious or well lit. Nor, apparently, was the new High
Court building at Allahabad itself at first an unqualified success,
since its designer had considered that it did not befit the dignity of
its appointments to equip it with punkhas. A system, therefore,
of pumping air (presumably by hand) from the cellar had been
devised, without, it seems, the expected result of cooling the build-
ing. It was said at the time by the wits of the Bar that the only
thing wrong with the new High Court building was that it was
impossible either to hear or see in it. But even so it compared
favourably with the new Calcutta High Court which was opened in
1872 and about which even more unpleasant things were said.
The full High Court assembled
at Allahabad late in 1869
When exactly the Court first assembled at full strength in
Allahabad it is difficult to say. But the Chief Justice was sitting
in Allahabad in the autumn of 1869. It seems probable, therefore,
that the full High Court did not actually get into its stride at
Allahabad until late in the year 1869, after it had been in existence for
over three years, though part of it had been sitting here since 1868.
Retirement of Mr. Justice Edwards
in March} 1867
Mr. Justice Edwards had a very short career in his new office
as a Judge of the High Court. He was on leave from March till
December, 1866, and sat for less than three months in 1867, proceed-
ing again on leave preparatory to resigning from the Bengal Civil
Service in March, 1867. In his place Robert Spankie became a per-
manent Judge on the 7th May, 1867. His was, therefore, the first
appointment, other than those nominated by the Letters Patent.
Incidentally, the Judges in those days received salaries of Rs. 3,750
a month, while the Chief Justice’s salary was Rs. 5,000 a month.
At the time these salaries were fixed there was no income-tax in
India.
Death of Mr. Justice Roberts.
Retirement of Mr. Justice Ross
The second casualty among the original Judges of the High
Court occurred on the 27th January, 1870, when Mr. Justice
Roberts died in the South of France at Hyeres, having left Allahabad
in ill-health in August, 1869. Mr. Justice Ross sat for the last time
in the Court on the 15th April, 1871, before retiring to England.
Thus by the spring of 1871, three out of the original five Judges of
the Court had disappeared.
The Allahabad Bar
By this time the Allahabad Bar was beginning to get into its
stride and possessed many European Barristers, who had been
admitted as Advocates of the Court, and a growing number of
Indian Pleaders. Simultaneously with the formation of the new
High Court, rules had been made, dated the 16th June, 1866, which
provided, among other things, that all Advocates and Vakils, who
were entitled to appear in the Court of the Sudder Diwanny Adawlat,
should, on application within three months from that date, be
admitted to be enrolled and to plead in the High Court of the
North-Western Provinces. As far as can be traced, there were at
the time of the move to Allahabad six Advocates on the roll of the
High Court : Messrs. Pritchard, Pittar, Warner, Smith, Thomas and
Arathoon. But this grew rapidly, and by the end of 1871 new
admissions had brought the number of Advocates up to twenty.
The increase in the volume and value of the work of the High Court
is demonstrated by the continuous stream of Advocates who sought
admission, and, by the middle of 1877, over fifty Advocates had
been enrolled, including three Indians.*
William Jardine, first Government Advocate
In 1869 or 1870, Mr. William Jardine was appointed the first
Government Advocate of the North-Western Provinces. He came
from England with, it is understood, greater mathematical than
legal qualifications, a circumstance which gave rise to some comment
at the time of his appointment. But he overcame these criticisms ;
and so far as can be gathered from such reports of his addresses to
the Court as have survived and from his active share in the legal life
of the Province, he was a man of energy and was a courageous and
able advocate, t
*Sayyid Muhammad Mahmud, enrolled on the 13th December, 1875; Kishori
Mohan Chaterji, enrolled on the 58th January, 1875; and Manphul Surajbal Pandit
enrolled on the 53rd February, 1877.
t The Jardine family had a close connection with India. William Jardine,
the first Government Advocate of the North-Western Provinces was possibly a younger
Mr. G. E. Knox, C. S.
There is one interesting reference on the 28th January, 1871 to
a criminal case before Mr. J. W. Shearer, the then Sessions Judge of
Allahabad, in which the Crown was represented by the Government
Advocate and “Mr. Knox, C. S.’\ This was the embryo of Sir
George Knox, nineteen years later to become one of the Court’s
most celebrated Judges, who, ripe in years, retired from the Bench in
1921. He had arrived in India in 1865 and his appearance in 1871
in the High Court proves an active association with it at least from
1871 to 1921, a period of fifty years, which is a record unlikely
ever to be broken. We shall be able to follow Sir George Knox’s
notable career when we come to it. At this early date he was an
officiating magistrate and collector ; but it is not easy to understand
in what capacity he was appearing “with” the Government Advocate.
It was not as Legal Remembrancer, a position which he did not fill
till 1885. It is, however, believed to have been customary for a
Legal Remembrancer to appear whenever he liked in those days both
in civil and in criminal cases. When it was stopped is not known ;
but it occurred in comparatively recent times when Sir Edward Ben-
net, afterwards himself a Judge of the High Court, appeared before
Mr. Justice Pullan and was, I am told, duly reproved.
brother of John Jardine, a member of the Bombay Civil Service, who after a distinguished
career during which he was for a time Judicial Commissioner of Burma and Recorder of
Rangoon besides being Secretary to the Commission which tried the Gaekwar of
Baroda in 1875, finally in i88j became a Judge of the Bombay High Court William
Jardine left a son, who was a member of the Indian Civil Service and became the
Resident at Gwalior before retiring. William Jardine lived in Allahabad in the house
at the crossing of the Katra Road and the University Road, which now belongs to
Lala Ram Narain Lai, the bookseller.
The early ‘Vakil’ Bar and its celebrities*
The new High Court on its establishment not only took over
the judicial work of the abolished Sudder Diwanny Adawlat, but, as
mentioned above, it also took over the Vakil Bar of the older Court.
There was to be a period of transition during which the Urdu speaking
Vakil Bar was to be changed into an English speaking Vakil Bar,
and its enrolment under a Sanad issued by the Judges of the Sudder
Diwanny Adawlat was to be replaced by enrolment under an exami-
nation conducted by the new High Court. During this period of
transition, which went on up to the time of Sir Robert Stuart’s
Chief Justiceship, the Urdu speaking Vakils often made speeches in
the High Court in Urdu and their addresses were interpreted to the
Court in English by their English knowing Juniors at the Bar. The
undoubted leader of the Urdu speaking Vakils was Maulvi Haider
Hussain of Jaunpur. He amassed a great fortune at the Bar at Agra
and at Allahabad, and founded a legal family in these Provinces,
which, after him, was represented in the High Court by his son,
Nawab Abdul Majid, and by his grandson, Nawab Sir Mohammad
Yusuf, Bar.-at-Law, both of whom greatly distinguished themselves in
the Muslim politics of India. Maulvi Haider Hussain was followed
as the leader of the Vakils by Munshi Hanuman Prasad, of
Banares, who was essentially an Urdu speaking Vakil of the Sudder
Diwanny Adawlat, but was sufficiently young at the time of the
change to acquire a smattering of English by self study and to be
able to express himself in broken English in Court. He too estab-
lished a great reputation at the Bar and founded a legal family
which has produced distinguished lawyers both at Banares and at
Allahabad. One of his grandsons, Mr. Justice Gokul Prasad, after
•Contributed by Mr. (lately Mr. Justice) S. K. Dar.
II
a distinguished career at the Bar, became a judge of the High Court
and his family is still represented at the Allahabad Bar by his
grandson Munshi Ambika Prasad and great grandson Shri Ganesh
Prasad. Following Munshi Hanuman Prasad, were a band of
young V akils drawn from all over the Province who had received
the highest English education which was then available in the Anglo-
Vernacular Schools established by the Government. The leaders of
this group were Pandit Ajudhia Nath, Pandit Bishambhar Nath and
Munshi Jwala Prasad. The last named in 1872 became the junior
Government Pleader. He was a distinguished son of Munshi Man
Rai, a great Sudder Diwanny Adawlat lawyer of the earlier days at
Agra, who had himself been Government Pleader at Agra in the old
Sudder days. But he died young. Pandit Ajudhia Nath and Pan-
dit Bishambhar Nath made great reputations for themselves both in
law and in politics and at one time were household names in these
Provinces within the memory of men now living. The former was
a great Sanskrit and Arabic scholar and was almost unrivalled in
India as an Urdu orator. He was referred to by Sir John Edge on
a public occasion as the equal of Sir John Russel, the famous Eng-
lish lawyer. Pandit Ajudhia Nath is now represented in the High
Court by his son. Pandit Gopi Nath Kunzru, the younger brother
of Dr. Hirday Nath Kunzru. Pandit Bishambhar Nath was a fine
specimen of the old culture. He was one of the first twelve In-
dians to study English in the Delhi College before the Indian
mutiny, another being the grandfather of the Rt. Hon’ble Sir Tej
Bahadur Sapru, at that time a teacher of Mathematics. Pandit
Bishambhar Nath died at Allahabad in 1907* He was a Persian and
Urdu scholar and a fluent English speaker. Shortly before his
death, he came out of his retirement at the insistence of an old
client to argue his case in the High Court. A grandson of Pandit
Bishambhar Nath, Pandit Prithvi Nath, lived in Allahabad; and an
Advocate of the High Court, Mr. Madanmohan Nath Raina, was
married to one of his grand-daughters. These veterans were the
leading members of the Vakil Bar, which, later on, came from the
Universities and a continuous line exists today. To them belongs
the honour of running the first race with English Advocates and of
establishing the reputation and traditions of the Vakil Bar. Of the
English Advocates of the Court at this time, probably the most
celebrated were Mr. W. M. (later Sir Walter) Colvin*, who was
enrolled on the 9th December, 1872 and Mr. T. Conlan who was
enrolled on the 4th November, 1873.
Quarrels at the Bar and Legal Education
Messrs. Goodall and Newton, two barrister advocates of the
Court, in 1870, came to loggerheads with each other in a domestic
defamation suit which eventually came to be tried by the subordinate
judge of Allahabad. It arose out of an anonymous defamatory
letter concerning his professional colleague said to have been cir-
culated by Goodall among local officials, including the Judges and
Registrar of the High Court, and sundry subordinate judges and
officials of the Province. Mr. Goodall defended himself in a sensa-
tional case by denying successfully that he had written the letter at
all and, therefore, its authorship remains a mystery. Mr. Newton
was, however, very soon afterwards suspended from practice for five
years for alleged unprofessional conduct in what was probably the
*Walter Mytton Colvin was the youngest son of the Hon’ble Mr. J. R. Colvin, B. C. S.,
Lieutenant-Governor of the North Western Provinces who died in the Fort at Agra
in 1857. He enjoyed a leading practice at the Allahabad Bar, and in 1895 was
appointed a member of the North West Provinces Legislative Council. He was a
Fellow .of Allahabad! University and was knighted in 1904 for his services on the
Commission appointed to inquire into police administration.
first case of its kind in the High Court. But he eventually appeal-
ed to the Privy Council, which reversed the decision of the High
Court and reinstated him in 1872. It is recorded that Mr. Newton
on a certain Thursday in 1872 appeared in the High Court and
presented the Order of Her Majesty in Council, whereupon he was
reinstated.' 1 ' In these days there was, it seems, much competition at
the Bar, both professional and unprofessional. The Bar was sharply
divided between the Barristers and the Vakils. Legal education
was provided through the medium of law classes under the control
of the Court itself. But, though Allahabad University was in 1 870
only in process of being established and no University law school
existed, the colleges of the North Western Provinces had been affiliat-
ed to Calcutta University. From at least the year 1870 onwards
Calcutta University turned out graduates both in arts and in law,
and many of these found their way into the Courts of these Provinc-
es. But legal education within the Provinces themselves, such as
it was, was only by means of the law class, directed by the High
Court, of which Mr. Justice Turner appears to have been the princi-
pal patron, as he seems to have been of most other legal activities of
the time. A pleadership examination was held at irregular intervals
under his auspices, and we have a record of one such examination in
*Mr. Newton acquired, or re-acquired, a large practice in the North Western Prov-
inces and the Punjab ; but he died soon after this in 1875- He was the advocate of the
Begum Sumroo in her Arms suit against the Government and at the time of his death
was engaged in the suit of Raja Rumben Singh, which until a recent suit in
Bengal, was the Indian ‘Tichbourne case’. But Mr. Newton left behind him a
son, Ernest Augustus Newton, who came out to India in i860, joined his father’s
office in Allahabad and was enrolled as a Pleader of this Court in 1874. He practised
m Allahabad, but later went to Dehra Dun, where he became Government Pleader
and acquired a large practice. In 1883 he moved to Meerut, where he was still practis-
ing in 1908. He was a well-known Freemason. (The Cyclopaedia of India Vol
II, p. 331).
May, 1871, at which fifteen candidates sat to be examined in English,
Hindu and Mohammadan Law, of whom eight were successful, three
with credit.
A chapter of accidents in early
Criminal Procedure
It may be interesting to notice an early criminal appeal of some
celebrity which came before a Full Bench of the High Court in
January, 1870, consisting of the Chief Justice and Ross, Turner and
Spankie, JJ. Nye Singh had been tried and sentenced to transporta-
tion for life on the 27th August, 1868 by the Assistant Commissioner
of Kumaon in respect of an offence committed before the Indian
Penal Code came into force. In revision a Division Bench of the
High Court, consisting of Turner and Spankie, JJ., were divided in
opinion, the former declaring for a new trial, the latter for upholding
the conviction and sentence. By a curious process, Mr. Justice
Spankie, who was the junior of the two Judges, in a pencil note
scribbled on a scrap of envelope, wrote “Division of opinion, lay
before a third Judge”. In due course, the case came before Mr.
Justice Pearson, who agreed with Mr. Justice Spankie. The point
had been overlooked, however, that there was then no provision,
as there is now, for laying a case before a third Judge in the event
of an equal division of opinion on a Division Bench. The Letters
Patent *of the Court at that time provided that the opinion of the
Senior Judge should prevail, that is to say, in this case, the opinion
of Mr. Justice Turner. The convict, therefore, applied to the High
Court (probably in revision) for a retrial in accordance with
Mr. Justice Turner’s opinion. This application was, in due course,
heard by a Full Bench of the four available Judges of the Court.
But the Full Bench was itself equally divided, the Chief Justice and
Mr. Justice Turner declaring for the new trial on the one hand, and
Mr. Justice Ross and Mr. Justice Spankie, on the other hand, being
for upholding the conviction. This left a most distressing position
in which the unfortunate convict’s case had admittedly been dealt
with in a manner not provided for by the Letters Patent, but in
which a majority of the High Court could not be prevailed upon to
say so. In the end the conviction stood (there being no majority
of the Court willing to set it aside), with a strong hint by the Court
itself that the best thing that could happen in the interests of all
parties would be that the prisoner should receive a free pardon.
Whether he was fortunate enough to be pardoned is unknown. But
the case may be fairly described as an early chapter of accidents in
criminal procedure. Other criminal appeals in 1870 included a case
of suttee from Jaunpur, in which the High Court had occasion to
observe that it was the second case within a short time and that it
was, therefore, necessary to be severe. The lady’s sons and other
villagers received sentences of three years’ imprisonment for assist-
ing her.
The “Dullals”
To revert again to the troubles at the Bar, all was not well,
as, both among the Vakils and the Advocates the pernicious practice
of ‘touting’ was much in evidence even at this early stage. There
was a class of professional touts, who infested the railway station and
the precincts of the Courts. An attempt was made, much to their
credit, by some of the Vakils themselves to have this traffic stopped.
The practice was for this class of parasites, who were called “dullals”
but masquaraded as “mookhtiars”, to introduce clients to Vakils,
and even to Advocates, in consideration of a ‘chaharum’ amounting
to one-fourth of the ultimate fee. The early attempts to stop
it were not very successful, as the majority of the Vakils, while
condemning ‘dullals’ as such, found it difficult to distinguish them
from the genuine ‘mookhtiar’ whom they professed to regard as
a useful class of unofficial solicitor, acting between the client
and the Pleader. But it bore fruit soon afterwards, and, after a
commendable address by the Bar to the High Court condemning the
abuses of the ‘dullals’ and asking for assistance, the Bar itself in
1871 formed an “Advocates Association”, pledged to suppress
malpractices of this kind, which must be taken as the embryo of the
Bar Council of today.
Exploitation of Litigants
In other respects, also, the new Bar was in some ways not in a
very healthy condition in 1870. Fees were very high and that
there was considerable exploitation in the Province of the litigant
public by Vakils and Barristers alike can hardly be doubted. There
were complaints on all hands of extravagant fees and of the high
cost of litigation. The ‘Englishman’ writing from Calcutta said
openly that the law courts were the weakest point in the adminis-
tration, and that litigation had reduced to poverty more than half
the old families in the country. Money-lenders and lawyers throve,
and there had already come into existence a system of ‘law suit
g am b lin g’ which had led to obvious abuses among the legal
profession. This was not confined to the lower strata of Plead-
ers and, from what can be gathered from contemporary reports,
as often as not lawyers were remunerated by results. Lord
Cornwallis had a long time before, on the nth February, 1793
(Parlt. Papers 1810 and 109), written a minute which showed
that the administration of justice in India was hampered by the
absence of a properly organized legal profession, Suitors either
appeared in person, or appointed unorganized Vakils or Pleaders
or their own servants and Pairokars to appear for them. The
persons who practised as Vakils were at that very early date
often of low character and had no reputation to lose by mis-
conduct. They took bribes and, if detected in misconduct in
one court, they moved to another. They were ignorant of
Hindu and Mohomedan law, as well as English law. When the
servants of suitors appeared to plead their masters’ causes, matters
were even worse. To remedy this a certain number of Vakils
had been licensed at the end of the eighteenth or the beginning
of the nineteenth century, who were to have a monopoly of
practice in the courts. They were to take an oath to execute their
duties properly, rules were to be made as to their gratification
and provision was made for their education at the Mohamadan
College at Calcutta and at the Hindu College at Benares*.
There was, therefore, a background of disorganization which had
no doubt resulted in a good deal of malpractice, which gave
rise to the strictures passed on the legal profession of those
days. These comparisons of early history cannot but provoke
the reflection that reform in India is slow for it would be hard
to deny that, over the intervening space of seventy years too
little has been done by stricter practice, by the proper staff-
ing of Courts, by the insistence on a uniformly high standard
of professional practice and conduct, and by the discouragement of all
speculative litigation, to protect the public from the descendants of
the ‘dullals’ and cheap lawyers. But that there had also quickly
developed a great body of most honourable and able professional
men is certain, to whom, like those who presented an address
*See Holdworth’s History of English Law, Vol, XI, p. 219.
to the High Court in 1871, these things were, and are, anathema.
But the progeny of the ‘dullal’ proved unhappily difficult
to exterminate. It is interesting, also, to see how the con-
troversies and debates which we hear today, were not new
even in 1870. There were the same old contentions as there
are now, as to the relative merits of the professional and the
unprofessional judge, and also as to the advantages of a separate
judicial service, all of which only goes to show that public
opinion is, or so far has been, a poor match for bureaucracy in India.
At this date, and until about 1923, a Criminal Session was
of course, held by the High Court at Allahabad for the trial of
European British subjects.* In 1870 the Criminal Session yield-
ed such interesting crimes as the theft of a case of sherry by a
certain William Hutt, a guard, at Moghal Serai, for which he
was duly sentenced to nine months’ imprisonment, and the “cri-
minal misappropriation” by William Thomas at Jubulpore of a
bedstead— what a very awkward thing criminally to misappro-
priate— for which he duly received six months.
The Long Vacation
The long vacation of the High Court from its inception started
in the beginning of September, and so remained until it was altered
# It was in 1883 that public opinion in India was deeply stirred, on the introduc-
tion of the Criminal Jurisdiction Bill, by the Opposition to the proposals made to
remove the race disability imposed on native magistrates by Chapter 33 of the Code
of Criminal Procedure against exercising criminal jurisdiction over European British
subjects. The subject was hotly debated in Parliament, the Opposition being led by
Sir James Stephen. But Lord Ripon, the Viceroy, eventually succeeded in getting the
Bill through in a modified form which gave power of trial of Europeans only to Indian
District Magistrates and Sessions Judges and allowed Europeans to require to be tried
by a Jury of which at least half should be Europeans or Americans.
in May 1933. It has a duration of only six weeks now and is
known as Summer vacation.
Mr. J. D. Sandford
In November 1870, Mr. J. D. Sandford became the Registrar of
the High Court. But he remained as Registrar for less than a year,
as in 1871 he was appointed the first Judicial Commissioner of
British Burma, an office which he filled with great distinction for
many years.
Appointment of Sir Walter Morgan
as Chief Justice of Madras
In the spring of 1870, the Chief Justice took leave to
England. On Saturday, the 20th March, 1870, the Indian
Vakils of the High Court headed by Moulvee Hyder Hossain,
whom we have mentioned before as the leader of the Vakil Bar,
attended His Lordship’s Chamber and presented him with a mov-
ing farewell address in which they commended his “untiring
patience” and his consideration for the “native Bar”. The
Chief Justice in his reply held out the prospect— a prospect before
long to be fulfilled— of the “highest judicial offices” being filled
by Indians, and concluded by saying :
“Gentlemen, you could not pay me a higher compliment
than by saying”— at which point the reporter claims to
have observed tears trickling down the Judicial cheeks— “that
I looked upon you all with an equal eye. I am takin g leave
of you for six months only”.
Sir Walter Morgan was a simple man, who disliked cere-
mony. During his absence, Mr. Justice Turner acted as Chief
Justice.
The Chief Justice returned to Allahabad in November 1870
and remained in office as Chief Justice for a year longer.
There are perhaps two incidents of 1871 which are worth re-
cording. During the year the famous Law Member, Mr. Fitz James
Stephen, paid a visit to Allahabad, where in the middle of his
many other preoccupations over the Penal Code, the Criminal
Procedure Code, the Civil Procedure Code and the Evidence
Act, he found time to deliver a speech on the “Permanent
Settlement” then a subject much in debate. The other incident
does not concern Allahabad, but Patna, where the Wahabees
were about to be tried. To defend them no less eminent a per-
son than Sergeant Ballantyne of Old Bailey fame from England
had been instructed, and he was announced to pass through Allah-
abad on Saturday, the 29th April, 1871. He never came, how-
ever, and what had happened to him was for a time something
of a local mystery. But the not uninteresting explanation was
that Sergeant Ballantyne never left England, since early in May
1871 he was to be found in London opening the case for the
claimant before Chief Justice Bovill in the famous Tichbourne
case.*
On the 4th September, 1871, the appointment of Sir Walter
Morgan was announced as the Chief Justice of Madras in
succession to Sir Colley Scotland, and simultaneously the
appointment of Mr. Robert Stuart, Q. C. of the Chancery Bar, as
the new Chief Justice of the High Court of the North Western
•Sergeant Ballantyne in fact came to India four years later to defend the Gaekwar of
Baroda before the Commission appointed by Lord Northbrook to enquire into the
charges made against him by Colonel Sir Arthur Phayre, the Resident at the Court of
Baroda, of an attempt to murder him by administering arsenic and diamond dust.
In the result the Commission was divided in opinion.
Provinces at Allahabad. The new Chief Justice was given by
the press at least, a cold and critical reception, as he was
thought not to be of such legal distinction as to merit so high
an appointment as the Chief justiceship of Allahabad, which was
described in the ‘Pioneer’ as the fourth highest judicial appoint-
ment in the British Empire. He arrived in Allahabad with
Lady Stuart in November and was sworn in on the 22nd, Sir
Walter Morgan leaving for Madras on the same day. Though
there was no display of emotion and no ceremonial leave taking
of the retiring Chief Justice, it is clear that his departure was
universally regretted. He had successfully accomplished the
difficult task of creating a new High Court, and had raised the
tone of the judicial service and the strength of the local Bar,
of both branches of which he held the confidence. He did not
perhaps, leave behind him a judicial reputation to equal that of
Sir Barnes Peacock, who was almost his contemporary in Calcutta.
But he scarcely had the same opportunities for doing so. Never-
theless, he was spoken of within living memory as a distinguished
Judge.
If there is anything to complain of in the stewardship of
Sir Walter Morgan, it must be that- he has left behind him so
few traces of himself. But that was apparently his character.*
O0OQ00QOQ
For a great deal of the material concerning the old Vakil Bar and its members I am
indebted to the knowledge and courtesy of the Rt. Hon’ble Sir Tej Bahadur Sapru.
Sir O. H. Mootham
Last English Chief Justice
The High Court for the North Western Provinces
1866-1876
By
SIR ORBY HOWELL MOOTHAM, Kt.
Ex-Chief Justice , Allahabad High Court
Establishment of the High Court
S N the 24th June, 1864, the Secretary of State for India asked the
Governor-General in Council " to take into your consideration
the question of establishing a High Court in the North-Western Prov-
inces, and furnish me with your opinion on the subject at as early
a date as practicable”.
The Indian High Courts Act, 1861, as all lawyers know, made
provision for the establishment of High Courts at Calcutta, Bombay
and Madras and for the abolition, on the creation of these courts,
of the existing Supreme and Sudder Courts in those cities. It also
provided for the establishment, by Letters Patent, of a High Court
in any other part of Her Majesty’s territories in India not already
included in the jurisdiction of a High Court. High Courts were
constituted in the three Presidencies in 1862, and thereafter the only
Sudder Court which remained was the Court of Sudder Dewani and
Nizamat Adalat for the North-Western Provinces. This Court sat at
Agra, although Bengal Regulation VI of 1 83 1 had provided that it was
“ to be ordinarily stationed at Allahabad ”. Its abolition was now
clearly only a question of time.
Perhaps it was not unnatural that the Sudder Court should
doubt, when the matter was put to it in 1864, whether that time had
arrived. In its opinion the cost of the proposed new Court would
be high, there would be difficulty in introducing the use of the
English language and there was a lack of adequate accommodation.
The Sudder Court, composed of members of the Civil Service, added
that it was not for it,
“ to express an opinion as to the increased efficiency of the
(new) Court in the determination of Judicial causes which may
be expected to result by the addition of Barrister Judges to its
number.”
The local Government favoured the early establishment of a
High Court. It was not worried about the cost and it did not think
that there would be any great difficulty in providing temporary accom-
modation for six Judges at Agra. (Only temporary accommodation
was required as the decision had already been taken to erect a new
building in Allahabad for the Sudder Court.) The Government of
India concurred and the Secretary of State did not 'delay. Letters
Patent creating the High Court were issued on the 17th March, 1866
and published in the Gazette of India on the 13th June ; and on that
day the High Court came into being and the Court of Sudder Dewani
and Nizamat Adalat ceased to exist.
The Court of Sudder Dewani and Nizamat Adalat
What kind of Court did the new High Court supersede ?
Fortunately we know a certain amount about it, for the way in which
it conducted its business bad been investigated in 1864 by Mr. Justice
Campbell of the Calcutta High Court. The cause of this enquiry was
the concern of the Governor-General with the state of judicial business
in the Sudder Court. The arrears on the civil side had more than
doubled between the beginning of i860 and the end of 1863. The
annual statement that year was regarded with grave disquiet by the
Government of India * ; and by a resolution dated the 23rd March,
1864, the Governor-General-in-Council decided that a Judge of the
Calcutta High Court should be deputed to Agra. He was to make
himself acquainted with the manner in which the business of the
Sudder Court was conducted and to recommend the adoption of such
changes as would make it conform to the system of the Calcutta High
Court.
Mr. Justice Campbell spent about a fortnight in Agra, and he
submitted his report on the 14th May, 1864. Mr. Justice Campbell’s
# Sir Henry Maine, then a member of the Governor-General’s Council, wrote a
minute (it is dated the 22nd February, 1864) of which two passages justify quotation :
“If the simple consideration be taken into account that in every suit one
party or set of parties must, in some sense, be in the right, and another party
or group of parties in the wrong, the heavy injury to private interests and
morality inflicted by keeping righteous litigants for so enormous a time from
the enjoyment of what should be theirs, and maintaining wrongful litigants
in the enjoyment or expectation of what should not be theirs, becomes too
plain a matter of illustration.’’
“To anybody who is accustomed to the criticism of Judicial systems, it
becomes evident on very short examination that the Indian system is
founded on the assumption of the comparative incompetence of the Judge of
the First Instance. Every Judge in his degree has somebody placed
above him, sometimes a series of persons, whose office it is to correct his sup-
posed mistakes .... But so far as the assumption relates to question of
feet, I hold it to be a delusion, and based on a false theory of the means of
ascertaining truth .... Except in physical science, there is no known
measure of the truth of facts except the aggregate of the impressions made on
task was clearly a delicate one ; but he was a tactful man and it says
much for the judges of the Sudder Court that they gave him
their full co-operation and furnished him with all the assistance and
information he required. His Report shows that the Court was not
as efficient as it should have been. For this there were two reasons :
the Court’s failure to make a sufficient distinction between its judicial
and administrative work, and to its unmethodical way of conducting
its judicial business.
“ Each Judge has his separate Court-room and separate
Establishment, and on going to Court commenced his business
by sitting singly to dispose of boxes of English correspondence,
periodical returns, miscellaneous applications and Criminal
cases not requiring a Bench of two Judges. Certain days
were given up altogether to Meetings of the whole Court
for discussions on various subjects.
“ When two days of each week were given to English meetings
and Full Benches ” (comments Mr. Justice Campbell) “ and
at least the first two hours of every day to Chamber business,
so that (one Judge also sitting out each day to write judgments)
each Judge sat on a Bench of two Judges only three times
each week, and then the Bench did not sit until the afternoon,
it would scarcely have been necessary to seek for any other
cause for the comparatively slow rate and consequent arrears.
the minds of men of average capacity and integrity by the evidence concerning
those facts and of these impressions the most important part is produced by
the language and demeanour of the witnesses and by the characteristics of
their story, not as it is read on paper, but as it falls from their lips. It
follows that a Judge of moderate abilities, who is actually in contact with
the witnesses, has a far better chance of arriving at truth than a Judge of
much higher power who hears the evidence at second-hand even when that
evidence is completely taken on paper.”
for which. such a system -would seem to go far to account
without prejudice to the industry and devotion of the Judges.”
It is but fair to add, as the learned Judge acknowledged, that as a
result of the time devoted to it the administrative superintendence of
the Sudder Court over the inferior courts was much superior to that
exercised by the Calcutta High Court.
The Court seems to have conducted its judicial business in a
very informal manner, for Mr. Justice Campbell thought it appropriate
to suggest that
“ the cases should be regularly called on in due order, and
that the proceedings should be so conducted that the order and
nature of the business before the Court should be intelligible
to a bystander, and should not in any degree approach the
semblance of Chamber business transacted between the Vakeels
and the Judges.”*
The increase in the Court’s arrears which had so concerned
the Governor General, seems to have been largely due (as we know
was the case nearly a hundred years later) to an increase in the
number of appeals filed, for the volume of work done by the Judges
compared favourably (as again was the case a century afterwards) with
*This suggestion was accepted by the Court which later in the year issued “Rules for
the Conduct of Oral Pleadings” of which the first three were :
“1. In addressing the Court, Pleaders will not approach the Bench, but
will deliver the whole of their argument in a regular and connected speech
addressed to the Judges from their proper places.
2. All other Pleaders, but the Pleaders addressing the Court, shall remain
seated. No Pleader shall, on any pretence, address the Pleader on the other
side, or any other person than the Court. i
S. The two Pleaders on the same side will not be permitted to interrupt
each other. The first must finish his speech and sit down, once for all,* — after
which the second Pleader may rise in his place and ask to be heard.”
that of the other Presidency Courts. This is what Mr. Justice
Campbell says :
“ * * * the total cases actually decided by the three
Courts of the North-Western Provinces, Madras and Bom-
bay, during the two years 1861 and 1862, expressed in special
appeals, would be—
North-Western Provinces . . . . * . . . 3,159
Madras .. .. .. .. 1,981
Bombay . . . . . . . . . » 1723
and in 1863 for the North-Western Provinces and Bombay
(Madras returns not received)—
North-Western Provinces . . . . . . . . 3,045
Bombay . . . . . . . . . . 956
It will be seen that the Bombay Court, with a larger number
of Judges, has done less than half the quantity of work; the
business of that small Presidency being, in fact, so light that
there was little more to do.”
The Court buildings were not approved by Mr. Justice
Campbell. After referring to “the scandal and political loss of
dignity caused by the present location of the Courts of Justice at
Agra among the uncleared and uncared for ruins which remain a
monument of the worst times of the mutiny” he goes on to say :
“It is more what one might imagine of the Courts and
Offices of a ruined and falling Empire, after a penultimate
invasion of the Goths, than the Judicial Capital of the civilised
and progressive Government of 30 millions of people .
The Senior Judge has a room which would be fairly enough
adapted for Chamber business, or for a Court of inferior
importance; but the other Benches are in rooms which look
more like long narrow wine-vaults than Courts, and the places
28 eS&a »
extemporised for the newly arrived Judges look like compart-
ments in an eating house.”
The state of the buildings led Mr. Justice Campbell to urge
strongly that the new High Court, if it were established, should from
the beginning be in Allahabad. The local Government, however,
thought otherwise : it saw no difficulty in providing adequate accom-
modation for the new Court at Agra “though”, as it said, “it might
possibly not fulfil the expectations of so exacting a visitor as
Mr. G. Campbell.”
The language of argument in all civil work in the Sudder Court
was Hindustani or Urdu. English could be used by agreement of
both parties, but as that agreement was usually not forthcoming the
use of English was, in practice, prohibited. This was, as has been
mentioned, one of the objections taken by the Court to the early
establishment of a High Court. In order to pave the way to the
greater use of English the Court informed the local Government that
it proposed to adopt a rule that after the ist January, 1864 no pleader
would be admitted to practice who was not possessed of sufficient
knowledge of English to follow oral pleadings in that language. This
was agreed by the Lieut. Governor who, however, thought it proper
also to give power to the Judge to admit pleadings in English when-
ever he considered it expedient.
On the criminal side the position was very different. At that
time the prosecution entered no appearance in criminal matters, and
accordingly there was no “opposite-party” who could object to the
use of English. Moreover under a rule of the Court anyone could
appear for an accused person as his agent. It was not necessary that
he should be an advocate of the Court. The result was deplorable—
“When a man has failed in half-a-dozen avocations, has been
rejected as a Government servant, cashiered as a soldier, become
bankrupt as a trader, has broken down in his undertakings as a
speculator or public works contractor, a kind of law of gravita-
tion seems to bring him to the last resource of all, and he
announces himself as a ‘Law Agent 5 or by some such title.”
There was one further curious feature of the old Court. In
common with the other Sudder Courts of the Bengal Presidency it
had no Chief Judge. Early Regulations had made provision for a Chief
Judge, but a later enactment. Regulation III of 1829, abolished the
designation of “Chief or Senior Judge”— the juxtaposition of the two
adjectives is significant— as its use, the Regulation says, “had in some
instances been productive of inconvenience.” The cause of the
change is to be found in the rule of seniority. All the Judges were
then covenanted servants of the East India Company, and it seems
that rather than depart from that rule, where the senior judge was not
the best fitted for the office of Chief Judge, the Company preferred
to abolish the office. In any event the want of a Chief Judge
undoubtedly contributed to the unmethodical way in which the
Sudder Court did its business.
The first Judges of the High Court
Sir Walter Morgan, William Edwards, Alexander Ross, W illiam
Roberts, Francis Boyle Pearson and Arthur Charles Turner were
named in the Letters Patent as the first Judges of the new Court.
Sir Walter Morgan, the Chief Justice, and Mr. Justice Turner were
barristers; the others were members of the Bengal Civil Service and
had been judges of the Sudder Court. Mr. Justice Edwards and Mr.
Justice Ross must have been on leave when the new Court was
established, as Mr. G. D. Turnbull and Mr. Robert Spankie (both
members of the Civil Service) were appointedto officiate as Judges in
30
their places by a notification which appeared in the issue of the Gazette
of India which contained the Letters Patent.
Sir Walter Morgan
Sir Walter Morgan was born in 1821. He was educated at
King’s College, London, and at the age of twenty-three was called to
the Bar by the Middle Temple. He practised for some years in
England, and then went to Calcutta where he was admitted as a
member of the Supreme Court Bar. In 1854 he was clerk to the
Legislative Council of India, in 1859 a Master in Equity to the
Supreme Court and in 1862 he became one of the first Judges of the
new High Court at Calcutta established in that year. This office
he held until he was appointed the first Chief Justice of the High
Court for the North-Western Provinces.
The circumstances in which he left Calcutta displeased the
then Chief Justice of Bengal, Sir Barnes Peacock, who, in a Minute
dated the 28th May, 1866, recorded that Mr. Justice Morgan had
tried only one case (and that undefended) since the announcement in
March of his appointment to Allahabad, and that he had left Calcutta
early in May without having
“thought fit to communicate with me upon the subject,
nor has he condescended to inform me of his intention to
leave Calcutta, which, even if he has ceased to be a Judge
of the High Court here, from the time of the announcement
in the 'London Gazette of his appointment as Chief Justice
of the High Court to be established at Agra, would not have
been more than common courtesy demanded.”
Aged 41 when appointed a Judge in Calcutta, Sir Walter
Morgan was 45 when he became Chief Justice— an office he held until
1871 when he became Chief Justice of Madras. He retired in 1879
and died in London in 1906 at the age of 85. He had married in
1849, but Sir Henry Braund in his brief sketch of Sir Walter Morgan
had found no evidence of his wife having visited Allahabad. Sir
Henry Braund records that on the Chief Justice’s departure on leave
in March 1870 the Indian Bar, headed by Maulvi Hyder Hossain,
presented him with a moving farewell address in which they
commended his “untiring patience”; and that his final departure from
Allahabad was universally regretted.
Edwards, J.
Mr. Justice Edwards is the only one of the civilian judges
about whom we know more than the barest biographical details.
Appointed to the Bengal Civil Service in 1837 he would in the
ordinary course have made his first journey to India by ship round
the Cape of Good Hope. He was, 'however, a fortunate young man,
for just before he was due to leave it was suggested by the Court of
Directors that he should take the overland route from Alexandria
to Suez (the canal had of course not then been constructed) to test
the possibility of this route as one suitable for mails and passengers.
Edwards accepted the suggestion with alacrity, and after an adven-
turous journey reached Bombay after nine weeks’ travel. On arrival
in India he was appointed Assistant Secretary to the Government of
Agra, but was shortly afterwards made an Under-Secretary to the
Government of India, Lord Ellenborough being then the Governor-
General. In June, 1843 he went with the Governor-General from
Allahabad to Calcutta, the journey being made by the quickest
route, which in those days was by steamer. In the same year he was
present at the battle of Maharajpore fought against the Mahratta
32 *££&
Confederacy. His health then appears to have given him some
concern, and in 1847 he was appointed Superintendent of the Hill
States— the territory lying between the Sutlej and the Jumna— with
his headquarters at Simla. He seems to have been a man of warm
sympathies for those under his charge ; and, distressed at the want
of any educational facilities for the local children, he devised a
scheme whereby the monetary offerings made by princes and chiefs to
the Political Agent were constituted a fund for the establishment of a
central school at Simla and a local school in each chiefship. The
scheme worked. A training school for teachers was established and
elementary school books in the hill dialect were prepared and printed ;
and later on the system thus established was extended to the United
Provinces.
Edwards, as Superintendent of the Hill States, was also
troubled by the hardship caused to the local inhabitants by the
prevailing practice of requiring them to act as porters for the carriage
of baggage from the plains to the various hill stations. What was
needed, he thought, was a road for wheeled traffic. He pressed the
idea on the authorities, marked out part of the suggested course it
should take, secured the help of army engineers and ultimately
succeeded in persuading a somewhat reluctant Government under
Lord Dalhousie to sanction the construction of the Kalka-Simla
road.
After 15 years’ continuous service in India, Edwards in 1852,
went to England on leave. He returned in 1854— only to find that
there was no employment for him in the political or secretarial
departments. As a consequence he was, as he says, “forced to enter
the judicial and revenue branch of the Service.” Clearly, he did so
with reluctance. His first judicial appointment was as Magistrate and
Collector at Benares. In 1855, he was transferred in the same
33
capacity to Budaon but was back in Benares in i860 as the Civil and
Sessions Judge. In 1862— after 8 years’ judicial experience— he was
appointed to the Sudder Dewani Adalat, where he remained until he
became a Judge of the High Court on its establishment four years
later. His career on the High Court was short. On leave when the
Court was established, he did not take his seat until December 1866 ;
and he retired in March of the following year. As a young man he
had, in 1845, published a useful collection, in two volumes, of
“Treaties and Engagements between the Hon. East India Company
and the Native Powers in Asia”, with an introduction and notes. In
the year in which he was appointed to the High Court he published
the “Reminiscences of a Bengal Civilian” which contains a robust
Victorian account of an adventurous and interesting life.
Unfortunately very little seems to be known about Mr.
Justice Edwards’ three service colleagues on the Sudder Dewani
Adalat. An examination of the Civil lists and records of service
(the first published volume of the latter appeared only in 1880)
discloses only the barest biographical details, and of the accuracy of
some of these it is difficult to be sure.
Ross, J.
Alexander Ross was educated at Edinburgh Academy and the
University of Edinburgh. He entered the Bengal Civil Service in
1836 and ten years later he became Superintendent of Dehra Dun.
From 1858 to 1863 he was Civil and Sessions Judge at Faruckhabad, and
it was probably during this period that he became a member of
a special commission appointed to try the Nawab of Faruckhabad for
complicity in the events of 1857. He was a Judge of the Sudder
Court and thereafter of the High Court from 1863 to 1871.
34
Roberts, J
William Roberts arrived in India in 1839. He was Civil and
Sessions Judge of Gorakhpur in i860, Commissioner of Rohilcund
from 1862 to 1865 and a J udge of the High Court from 1866 to
1869. He died in the south of France on the 27th January, 1870.
Pearson, J.
Francis Boyle Pearson was educated at the Proprietary School
at Islington, on the outskirts of London. He arrived in India in
1840 having passed, as was then required of all entrants to the
service, through the East India Company’s College at Haileybury.
He was employed as a Settlement Officer in Jull under in 1849 and
became Registrar of the Sudder Court in the following year. After
service as Civil and Sessions Judge at Benares, Saugor and Cawnpore
he became an officiating judge of the Sudder Dewani Adalat in 1862.
He was a Judge of the High Court from 1866 to 1881.
Turner, J
The first barrister puisne judge, Charles Arthur Turner, was
educated at Exeter Grammar School and at Exeter College, Oxford,
of which he became a fellow in 1855. He was called to the Bar by
Lincoln’s Inn in April 1858, and at the exceptionally early age of
33 he was appointed to the Allahabad High Court. He was (according
to the writer of his obituary in The Times) an earnest member
of the Church of England and a man of strong feelings and warm
heart ; and he had unusual physical strength. Whether he had
a judicial temperament may perhaps be doubted, but it is said that
he found pleasure in the intricacies of Indian land law and was
a very good administrator. He remained on the Court for twelve
years and then succeeded Sir Walter Morgan as Chief Justice of
Madras. While in Madras he was twice Vice-Chancellor of the
University, and towards the end of his term of office he became
a member of the Indian Public Service Commission. Three years
after his retirement in 1885 (at the age of 52) he was appointed
to the Council of India and later during his ten-year period of
service became the Vice-President. It is recorded that after his
retirement (money being worth more than it is today) he was
able to indulge his passion for purchasing pictures. He died
on the 20th October, 1907.
Turnbull and Spankie, JJ.
George Dundas Turnbull and Robert Spankie, both of whom
became officiating judges of the Court in 1866, remain shadowy
figures. The latter— distinguished from his brethren by being
educated at Eton— had previously officiated on several occasions
as a Judge of the Sudder Court. He succeeded Mr. Justice Edwards
in 1867 and retired at the end of May 1881. Mr. Turnbull
officiated as a Judge of the High Court in 1870, 1871 and 1873,
but for reasons which can only be surmised he was never confirmed.
His last appointment was as Civil and Sessions Judge oi Meerut.
Jardine, J.
Mr. William Jardine, the first Government Advocate of the
North-Western Provinces, officiated as a Judge of the Court for
a few months in 1873 in the place of Mr. Justice Turner. He
died on the 17th August of the same year.
36
Sir Robert Stuart
Sir Robert Stuart succeeded Sir Walter Morgan as Chief Justice
in November 1871, and for the next two years the Court seems
to have worked with an effective strength of four. In 1874 Mr. R. C.
Oldfield and Mr. M. Brodhurst were made additional judges but
neither seems to have been confirmed as a permanent judge for
seven years.
Sir Robert Stuart was born in Scotland in 1816, and was there-
fore five years older than the Chief Justice whom he later succeeded.
He was admitted to the Faculty of Advocates in Scotland in 1840.
Some years later he came to London and joined Lincoln s Inn of which
he became a Bencher in 1868 and Treasurer in 1884. In London
he practised on the Chancery side and was made a Queen’s Counsel
in 1868. He was sworn in as Chief Justice at Allahabad on the
22 nd November, 1871 and Sir Henry Braund notes that he received
from the press a cold and critical reception as he was thought not
to be of such legal distinction to warrant his high appointment.
Twice during his term of office the Court was involved in
controversy with the Government, the question on each occasion
being the independence of the Court from executive interference.
The first occasion was in 1873. One Girdhari Lai lost a civil suit in
the High Court on the defendant establishing a plea of minority ; and
he was ordered to pay the defendant’s costs. He was unable to do
so and was committed to the civil jail at Dehra Dun. There he
was seen by the Lieut. -Governor, Sir William Muir, during a tour
of inspection. The Lieut.-Govemor’s sympathy was aroused by Gir-
dhari Lai’s plight, and he directed the Subordinate Judge to proceed
under the Provincial Insolvency Act, and if the Judge was satisfied
that the judgment-debtor had no means of paying the costs, he was
directed to consider whether the debtor should not be released from
imprisonment. The High Court protested that the Lieut. -Governor’s
action was an unwarranted interference in the judicial administration,
and in March 1874 the Government of India, to whom the matter
had by then been referred, upheld the High Court’s view.
Much more serious was the difference of opinion which arose
in 1876 over the case of The Queen against Fuller. Fuller was an
English pleader practising in Agra. One Sunday he and his family
were about to go to church ; the carriage was brought to the door
but the syce failed to appear. He was sent for, and when he came
Fuller struck him with his open hand on his face and head so that
he fell down. Fuller and his family went to church : the syce got
up, went some 200 yards to an adjoining compound and died almost
immediately. Fuller was tried by Mr. Leeds, the joint-magistrate
at Agra who framed a charge of causing hurt under section 323 of
the Indian Penal Code. There was some conflict of evidence as to the
number and nature of the blows struck by Fuller, but the medical
evidence was that the syce had no marks of injury and had died from
rupture of the spleen which, with very slight violence, would be
a sufficient cause. The magistrate sentenced Fuller to pay a fine of
Rs.30 or undergo 15 days’ simple imprisonment. The High Court
came to know of the matter when it received a request from the Local
Government, at the instance of the Government of India, for its
opinion on the adequacy of the sentence. Although not coming before
it judicially the record was considered by the Judges and the Local
Government was informed that, although the sentence was lighter
than the Court itself would have been disposed to inflict, it was not
in the circumstances specially open to objection. The Government
of India, understandably one may think, took a different view :
“ The Governor-General in Council cannot but regret that
the High Court should have considered that its duties and
responsibilities in this matter were adequately fulfilled by the
expression of such an opinion. He also regrets that the Lieut.-
Governor should have made no enquiry, until directed to do so
by the Government of India, into the circumstances of a case so
injurious to the honour of British rule, and so damaging to the
reputation of British Justice in this country. ... It
was the plain duty of the magistrate to have sent Mr. Fuller
for trial for the more serious offence” (i.e. of culpable
homicide).
These were strong words ; and the letter containing the
Governor-General’s views was published in the Gazette of India.
On the 5th August, 1876 the Court sent a letter to the
Government of India pointing out that the Governor-General’s
pronouncement gave rise to important questions concerning the
position of the High Court in India and the executive authority of
the Governor-General in Council. It argued that it did not lie
within the province of the Government of India either to approve
or condemn the action of the Court in any matter which fell
within the functions committed to the Court, or to instruct a
subordinate court on the conduct of its judicial functions ; and it
asked that, if the Governor-General in Council were unable to
concur in this view, the matter be referred to the Secretary of
State for India. This letter was supplemented on the 18th August
by a long minute by Sir Robert Stuart. The Chief Justice was
clearly deeply disturbed at the stricture on the Court which he
considered to be wholly unwarranted, both constitutionally and
in fact. He also considered that Mr. Leeds had been unfairly
treated* ; and he said so. On the constitutional question he
*“The Governor-General in Council views Mr, Leeds’ conduct in this case with
grave dissatisfaction. He should be so informed and should be severely repri-
was decidedly of opinion that the independence of the High Courts
in relation to the Executive Government had been thoroughly
established, and that the former enjoyed the same independent
authority and prestige as the English Courts. He added, with
perhaps some lack of tact, that there were no persons or authorities
in India possessed of qualifications which could fit them to
supervise or in any way control the High Courts, “for His
Excellency and his Council, with one exception, are not, legally
and technically, learned persons.” (The exception was Arthur
Hobhouse, Q. C.— later Lord Hobhouse, the Law Member).
The Governor-General was unmoved and the matter accordingly
went to the Secretary of State, Lord Salisbury. He dealt with the
issues in two despatches dated the 22nd March, 1877. In the first
he considered the proceedings before the Magistrate; and he upheld
the Governor-GeneraLs censure of Mr. Leeds*. In the second he
expressed the opinion that the constitutional issue between the
Court and the Government did not really arise, for in censuring
Mr. Leeds and expressing its regret that the Court did not bring
manded for his great want of judgment and judicial capacity. In the opinion of the
Governor-Genei al in Council, hfr. Leeds should not be entrusted, even tempora-
rily, with the independent charge of a district, until he has given proof of better
judgment and a more correct appreciation of the duties and responsibilities of Magis-
terial officers for at least a year.”
*“The fatal consequence of Mr. Fuller’s violence did not, according to Indian
law, increase its criminal character; but it did increase most materially the importance
of ascertaining the exact nature of the crime committed, not only accurately, but in
such a manner that the accuracy of the deci sion should be generally recognised.
Where death has been caused, it is of the utmost importance to satisfy the commu-
nity that impartial justice has been done, and this necessity is specially urgent where
the deceased is dependent and helpless and the person causing death belongs to a
superior class of society.”
his proceedings under judicial review the Governor-General was
dealing with purely executive functions which it was his province
to control; and the fact that these functions were partially
committed to the High Court did not alter their executive
character.
In these circumstances the Secretary of State turned to a
consideration of the constitutional issue reluctantly and only
because he had been specifically asked by the Court to do so. Her
Majesty’s Government did not accept the premise on which Sir
Robert Stuart’s argument was founded— that the Indian High Courts
had the same independent authority as the English Courts. And
this was so because there was a vital difference between the tenure
of English and Indian Judges. Under the Act of Settlement the
former held office during good behaviour; under the Indian High
Courts Act of 1861 they held office during Her Majesty’s pleasure.
This difference, in the Secretary of State’s opinion, was neither
accidental nor inoperative; and it followed, in the Government’s
view, that the right of dismissal carried with it necessarily the right
to indicate the conduct which may, if persisted in, incur dismissal.
It involved the right to approve or condemn the action of the
officer who is so liable to be dismissed. Lord Salisbury recog-
nised that logically this view could justify interference in purely
judicial functions, and he concluded his despatch with these
words :
“But it is not necessary for me to state to you that, as a
matter of policy, any executive action trenching on the
independence of Judges in the exercise of their purely
judicial, functions, could only be justified by reasons of
extreme necessity. Your Excellency is as deeply impressed, as
Her Majesty’s Government with the importance of maintaining
41
intact that confidence in the impartiality of the law Courts
which any interference of the Executive, except under pressure
of such reasons, would destroy.”
This expression of the Government’s view can have given little
satisfaction to the Court or its Chief Justice; and it was not until
the Government of India Act of 1935 that legislative provision to
secure the full independence of the Judges was made.
Judicial work of the Court
It seems now to be an impossible task to recreate the legal
reputation of the judges of the Court in its early days. We can
note with pleasure that the first two Chief Justices became Chief
Justices of Madras and that the third became Treasurer of Lincoln’s
Inn. The law reports enshrine the judges’ decisions, but it is
probably true to say that almost without exception they deal with
matters of local importance. How sound were they as expositions
of the law. An examination of the records of the Judicial
Committee of the Privy Council gives us an answer.
Appeals from judgments of the Court in the period from 1866
to 1876 were decided by the Judicial Committee between 1869 and
1880; and what happened to those appeals is shown in the following
table :
Year
Judgments
total affirmed reversed varied remanded
1869-70
1871
1875
1873
6 6
8 1 1
5 4 1
4 8 1 1
42 td&e*
Judgments
Year
total
affirmed
reversed varied
remanded
00
2
st
1875
2
2
l876
5
4
1
00
1
1
00
00
2
1
1
1879
3
2
1
1880
4
2
2
36
26
1 1
2
Comparative figures for the four High Courts during the same
period are naturally of interest; they are as follows :
Judgments
Court
total
affirmed
reversed
varied
remanded
Allahabad
36
26
7
1
2
Bombay
16
13
2
1
0
Calcutta
284
171
9 *
*7
4
Madras
43
2 7
14
1
1
The Law Reports
Between 1866 and 1876 the decisions of the Court were
reported in two series of reports. The first to appear was entitled
“Reports of the High Court of Judicature for the North-Western
Provinces.” The editors were two pleaders, Munshi Hanuman
Pershad and Lala Lalita Pershad, and their reports, in three volumes
43
were in respect of the years 1866— 1868, though the last decision
reported in the second volume is dated the 31st August, 1867. In
1869 Mr. H. J. Tarrant of the Middle Temple was appointed Official
Reporter to the Court, and beginning in that year a new series of
reports appeared, called “The North-Western Provinces High Court
Reports.” They consist of seven volumes and were in their turn
replaced in 1876 by the Allahabad Series of the Indian Law Reports.
The first four volumes were edited by H. J. Tarrant, the last three
by G. T. Spankie of Lincoln’s Inn who had succeeded to the post of
Official Reporter. The seventh and last volume reports no case
decided after the end of June 1875, and possibly to make good this
deficiency the first volume of the I. L. R. series (which is dated
1876-78) contains reports of 7 civil appeals and no less than 15
full bench decisions decided in the second half of 1875. In 1870
there also appeared a slender volume entitled “Selected Cases
determined by the High Court of Judicature, North-Western
Provinces, in its Appellate Jurisdiction.” It consisted of a mere
34 pages, accompanied however by a slip reading “Parts required to
complete the old series of Selected Cases will be issued in due course
by the publishers.” I have not been able to discover whether any
more parts were in fact issued, or what the “Old Series of Selected
Cases” really was.
The Judiciary and the Executive
By
SIR JOHN DOUGLAS YOUNG
Retired Judge , Allahabad High Court
the early days of the East India Company judicial office er
Miil were appointed by, and were under the control of, the Com-
pany. This position caused dissatisfaction and distrust in the
administration of justice. The judges and Magistrates were
suspected— -and no doubt with good reason— of truckling to the
appointing authority. Eventually the High Courts were set up
in the presidency towns of Calcutta, Bombay and Madras, and
later in the provinces the High Court Judges were appointed
from England.
The early history of the High Courts is one of conflict with
the Executive. In the early days the Executive strongly objected
to the interference of the Courts, and today in the Punjab, since
the new Constitution has given the Provincial Legislature greater
powers to legislate, the jurisdiction of the High Court and the
lower courts has been continually reduced. The tribunals which
have taken the place of the courts have even more defects than the
early courts of the East India Company as they will be under the
influence of both the local magnates and the appointing authority :
a retrograde and dangerous step. The Central Legislature too has
reduced the powers of the High Courts in the important matter of
contempt of court, which in India, of all places, are of the utmost
importance to preserve. There has, in fact in recent years, since
the new Constitution of 1935, been an atttack on the Courts and
their powers which Indians will live to regret. Unless the present
tendency to reduce the power of the Courts is reversed. Government
will soon learn the elementary lesson— and that in no pleasant manner—
that the strong and sure foundation of all Government, unless it be
Fascist or Communist, is the courts, and that the undermining of
that foundation is fatal and .final.
The last case I heard in Lahore was one where it was necessary
for the High Court to protect the rights of the subject against the
wrongful use of power by Government. In that case the
Government purported to use the powers conferred on it under
the Defence of India Act to acquire the business of the Lahore
Electric Supply Company, and so attempted to avoid a decision
of the courts. The question to be decided was whether they could
take possession of the property of the Company and terminate its
very valuable licence to supply electricity or not. It was doubtful
if Government had given the necessary notice under the licence to
terminate it. If they had failed in this respect, the Company could
enjoy the licence for another twenty years, a right which was worth
some half a million pounds to the shareholders. This important
matter was actually before the courts for decision when some genius
in Government thought of the Defence of India Act and the rules
made thereunder.
46
It was argued for the Company that the action of Government
was dishonest ; that it was not justified for any war purpose, and
that Government merely wished to avoid the suit pending in the
courts. We agreed with the Company that the order under the
rules of the Defence of India Act was both mala fide and ultra vires
and granted an injunction ordering Government to return the
property to the Company.
It is most important that the powers of the courts should not
be whittled away. The Executive in India will certainly continue
the process if they can. It is comparatively easy to do this in
India as there is no real opposition now to Governments in the
Legislatures, and little instructed criticism of proposed legislation
on these important matters.
One of the relics of the old days still remains in the control
of the magistrates by Government. These magistrates exercise
judicial functions in Criminal cases. They are appointed by
Government by nomination, whereas the subordinate judges on
the Civil side in the Punjab are appointed as the result of an
examination held by the High Court. Pay and promotion of the
magistrates are entirely controlled by the appointing authority
which is Government. The result is just the same as when the
East India Company appointed their own judicial officers— distrust by
the Public in the decisions of these courts. Appeals, it is true,
lie to the sessions judge and to the High Court, but this fact can-
not satisfy the public ; every one cannot appeal, and obviously the
decision of the trial court which hears and sees the witnesses—
especially in a country like India where liars abound in the courts—
is of great importance.
I do not wish it to be thought that the magistrates are not
good men. They are a good type of Indians and drawn from the
47
same class as the subordinate judges, but, naturally, if Government is
the prosecutor, and those who have to decide the case are paid,
promoted, and under the complete control of Government, they
would have to be very strong and independent not to be influenced to
some degree by their position ; and they are not as strong as that.
It was my habit when inspecting districts to see all the
magistrates and we had some very frank and interesting conferences.
I have often been told by them that they get into serious trouble if
in the opinion of the police or the district magistrate they acquit too
many accused persons. And with the police especially, and with
some district magistrates, it is almost a crime to acquit any one.
Therefore, to avoid the reputation of an “acquitting” magistrate
they will convict everyone towards the end of a month if they have
already exhausted their safe percentage of acquittals. They rely
on the appellate court to put right this injustice.
If there is in a district a good district magistrate, the
magistrates can do their duty, but it is scandalous that whether
a magistrate does his duty or not should depend on who the
district magistrate is. Some do not allow interference with their
magistrates by the police or others. Some lecture their magistrates
themselves if they show a disposition to acquit. Every magistrate
is afraid of the consequences if he acts according to his conscience
and all including the public wish they were under the High Court
and not under Government.
One of the most objectionable results of the present position
is that magistrates are subject to complaints made against them by
the police. There is always a policeman in court to take notes and
report to the Superintendent of Police, and the magistrates of course
know this. The Superintendent sends on the report with his
comments to the District Magistrate who nominally is the head of the
48
police. I say “nominally” as in the Punjab now-a-days there is a
general complaint that the opinion of the Superintendent of Police
is accepted before that of the District Magistrate in many cases.
The future of the magistrate is in the hands of the District
Magistrate— and really also in the hands of the police. Can it be
wondered at if these Indian gentlemen, to avoid trouble and
anxiety, do not always pay the attention they ought to pay to the
defence ? It is difficult for any one who knows India to blame
them. I do not. Let the same gentlemen come under the High
Court for all purposes and they will give as much satisfaction as
the subordinate judges.
The separation of the Executive from the Judiciary has been
for years, and continues to be, one of the crying needs of India.
No Government, British, Indian or Congress, wishes to part with
the power over the lives and fortunes of those they govern, given
them by control of the magistracy. Various reasons are given for
not transferring the magistracy to the High Court— all of them
without substance. The principal objection is said to be on the
ground of expense. There is no foundation for this objection.
Some magistrates already do little or no judicial work ; they can
remain under Government. The residue, taking all the judicial
work, can be transferred to the High Court with power to
Government to call upon their services in an emergency.
But even if the separation did cause increased expenditure,
what importance is there in that compared with the administration
of justice ? If justice is not given to the people, other and much
greater expenditure is bound to be incurred, and the foundation of
Government itself may well be undermined.
Before Congress Government took over power in most of the
provinces under the new Constitution of 1935, no individual or
body was louder in their cries for the separation of the Executive
from the Judiciary than Congress. They alleged, possibly with
some justification, that members of their party had suffered from
the ability of Government under the existing system to imprison
their opponents. I had talked to many of my friends in Congress
on this subject, and found them unanimous that this ancient abuse
should cease. “Only let Congress govern this country” I was told
“and you will see how this iniquitous arrangement will at once come
to an end”. On this ground I welcomed the advent of Congress as
rulers in 1937. I was doomed to disappointment : not one of the
Congress Provincial Governments could bear to part with power.
The subordinate judiciary, in criminal matters, remained bound to
the Executive.
I thought that at last justice would be done by a Congress
Government at least in the United Provinces. The minister in
charge of law and order there was my old friend Dr. Kailas Nath
Katju, one of the best advocates I have known in India, and in
every way an admirable, conscientious lawyer. Knowing how
interested I was in the subject he came to Lahore to discuss the
matter with me. We talked for some considerable time, and when
he left I felt that we had won the fight in the United Provinces.
When I saw the Bill he introduced, I found we were again defeated ;
Congress had once more fallen to temptation : the Bill put the High
Court in charge of some magistrates for three years, but at the
end of that time they returned to their former allegiance. It
would have been just as useful, and more honest, to have done
nothing at all. When the magistrate knew that he was to return
for pay, promotion and honours to Government, he would be just
as careful to keep in the good books of Government as ever he was.
The tongue in India is ever more powerful than the right arm.
There is one curious anomalous provision in the Criminal
Procedure Code which allows the Executive to avoid the normal
right of the High Court; if a Governor appoints a special
magistrate to try a particular case, the High Court may not order
a transfer of the case to another magistrate or even to itself. This
provision may lead to a miscarriage of justice and should be struck
out of the Code. If the Governor has a strong opinion— and he
sometimes has— that the accused is guilty or innocent, of the offence
charged, that opinion is known and it would take a very strong and
independent magistrate to decide the case contrary to the opinion
of EEs Excellency. Under such circumstances the accused would
normally at once ask the High Court to transfer the case to another
Magistrate. This he cannot do.
The Indian Judicial S3'stem
A Historical Survey
By
MR. JUSTICE S. S. DHAVAN
High Court , Allahabad
Part A : Judicial System in Ancient India
^"gNDIA has the oldest judiciary in the world. No other judicial
XU& system has a more ancient or exalted pedigree.
But before describing the judicial system of ancient India I
must utter a warning. The reader must reject the colossal mis-
representation of Indian Jurisprudence and the legal system of ancient
India by certain British writers. I shall give a few specimens.
Henry Mayne described the legal system of ancient India “as an
apparatus of cruel absurdities.” An Anglo-Indian jurist made the
following remark about what he called “the oriental habits of life”
of the Indians before the British turned up in India: “It (British
rule in India) is a record of experiments made by foreign rulers to
Note — This article contains extracts from various articles and papers published by
the author ; and it shall form part of a book on Indian Jurisprudence.
53
govern alien races in a strange land, to adapt European institutions
to Oriental habits of life, and to make definite laws supreme amongst
peoples who had always associated government with arbitrary and uncon-
trolled authority .”* (italicised by me). Alan Gledhill, a retired member
of the Indian Civil Service, wrote that when the British seized power
in India, “there was a dearth of legal principles.”!
These statements are untrue. It is not for me to guess why
they were made. They may be due to sheer ignorance, or imperialist
self-interest, or contempt for Indian culture and civilisation which
was a part of the: imperialist outlook which dominated British Jurists,
historians, and thinkers in the heyday of imperialism. But the effect
of this misrepresentation, which has few parallels in history, was to
create a false picture of the Indian judicial system both in India and
outside.
We must go to the original texts to get a true and correct
picture of the legal system of ancient India. The reader will discover
from them that Indian Jurisprudence was found on the rule of
law ; that the King himself was subject to the law ; that arbitrary
power was unknown to Indian political theory and jurisprudence
and the king’s right to govern was subject to the fulfilment of duties
the breach of which resulted in forfeiture of kingship; that the judges
were independent and subject only to the law ; that ancient India had
* History of the Constitution of the Courts and Legislative Authorities in India,
by Cowell (1872), p. 3.
f Alan Gledhill : The Republic of India, p. 147.
In fairness I must state that several British Indologists of emminence like E. B.
Havell, A. L. Basham, Spellman, and others, do not share the prejudices of their
imperialist predecessors though their approach may be different from ours. The
reader is advised to study The History of Aryans Rule in India by E. B. Havell; The
Wonder that was India by A. L. Basham, and Political Theory of Ancient India by John
W. Spellman.
54
the highest standard of any nation of antiquity as regards the ability,
learning, integrity, impartiality, and independence of the judiciary,
and these standards have not been surpassed till today; that the
Indian judiciary consisted of a hierarchy of judges with the
Court of the Chief Justice (Praadvivaka) at the top, each higher
Court being invested with the power to review the decision of the
Courts below; that disputes were decided essentially in accordance
with the same principles of natural justice which govern the judicial
process in the modern State today; that the rules of procedure and
evidence were similar to those followed today; that supernatural
modes of proof like the ordeal were discouraged; that in criminal
trials the accused could not be punished unless his guilt was proved
according to law; that in civil cases the trial consisted of four stages
like any modern trial — plaint, reply, hearing and decree; that such
doctrines as res judicata (prang nyaya) were familiar to Indian juris-
prudence; that all trials, civil or criminal, were heard by a bench of
several judges and rarely by a judge sitting singly; that the decrees of
all courts except the King were subject to appeal or review according
to fixed principles; that the fundamental duty of the Court was to
do justice “without favour or fear”.
Rule of law in Ancient India
Was there a rule of law in ancient India? Let the texts speak for
themselves.
In the Mahabharata, it was laid down “A King who after
having sworn that he shall protect his subjects fails to protect them
should be executed like a mad dog.”*
sft rSpReTT |
sr u— <Hr
“The people should execute a king who does not protect them,
but deprives them of their property and assets and who takes no
advice or guidance from any one. Such a king is not a king but a
misfortune.”*
These provisions indicate that sovereignty was based on an
implied social compact and if the King violated the traditional pact,
he forfeited his kingship. Coming to the historical times of
Mauryan Empire, Kautilya describes the duties of a king in the
Artha-shastra thus : ‘ ‘In the happiness of his subjects lies the King’s
happiness; in their welfare his welfare; whatever pleases him he shall
not consider as good, but whether pleases his people he shall con-
sider to be good.”t
The principle enunciated by Kautilya was based on a very
ancient tradition which was already established in the age of the
Ramayana. Rama, the King of Ayodhya, was compelled to banish his
queen, whom he loved and in whose chastity he had complete faith,
simply because his subjects disapproved of his having taken back a
wife who had spent a year in the house of her abductor. The king
submitted to the will of people though it broke his heart, ft
In the Mahabharata it is related that a common fisherman refused
to give his daughter in marriage to the King of Hastinapur unless he
accepted the condition that his daughter’s sons and not the heir-
apparent from a former queen would succeed to the throne. The
t jrsrr n— jctt® w
t*arr 3% 3# m: 1
*TT3T T5rcr if# ttit: srsrmr 1 fef %r it— srsf°
tt*"” 1
^ ^ jtct: v?: 11— ^r^fr%^To g© «bjo vh-%%
renunciation of the throne and the vow of life-long celibacy
(Bhishma Pratigyan) by Prince Deva Vrata is one of the most
moving episodes in the Mahabharata.* But its significance for
jurists is that even the sovereign was not above the law.
The great King of Hastinapur could not compel the humb-
lest of his subjects to give his daughter in marriage to him
without accepting his terms. It refutes the view that the kings in
ancient India were “Oriental despots” who could do what they liked
regardless of the law or the rights of their subjects.
Judiciary in Ancient India
With this introductory warning, I shall endeavour to describe
the judicial system of ancient India. According to the Artha-shastra
of Kautilya, who is generally recognised as the Prime Minister of the
first Maurya Emperor (322—298 B. C.), the realm was divided into
administrative units called Sthaniya, Dronamukha, Kharvatika and
Sangrahana (the ancient equivalents of the modern districts, tehsils
and parganas). Sthaniya was a fortress established in the centre of
eight hundred villages, a dronamukha in the midst of 400 villages,
a kharvatika in the midst of 200 villages and a sangrahana in
the centre of ten villages. Law courts were established in each
sangrahana, and also at the meeting places of districts (Janapada-
sandhishu). The Court consisted of three jurists (dhramastha) and
three ministers (amatya).t
.
35r: U*TT l|— ^TT» 7o ?oo,
snjft h - srfipamr 11 — ^tt= 7= ?<==, at
nfer w
57
This suggests the existence of circuit courts, for it is hardly
likely that three ministers were permanently posted in each district of
the realm.
The great jurists, Manu, Yajna-valkya, Katyayana, Brihaspati
and others, and in later times commentators like VachaspatiMisra and
others, described in detail the judicial system and legal procedure
which prevailed in India from ancient times till the close fof the
Middle Ages.
Hierarchy of courts in Ancient India
According to Brihaspati Smriti, there was a hierarchy of
courts in Ancient India beginning with the family Courts and ending
with the King. The lowest was the family arbitrator. The next
higher court was that of the judge; the next of the Chief Justice
who was called Praadvivaka, or adhyaksha; and at the top was the
King’s court.*
The jurisdiction of each was determined by the importance of
the dispute, the minor disputes being decided by the lowest court
and the most important by the King. The decision of each higher
Court superseded that of the court below.t
According to Vachaspati Misra, “The binding effect of the
decisions of these tribunals, ending with that of the king, is in the
ascending order, and each following decision shall prevail [against
the preceding one because of the higher degree of learning and
knowledge”, tt
*i^nr^nsTw swrasMtsarr. i
wtwmt ^rsrr ii— fo ?,
*p*rrcr finnf rt firrorm: i
^ u-f© ?, ^
tfcfrer usttrrt Rtpiwst i
f^rTuftir
58 x&t,
It is noteworthy that the Indian judiciary today also consists
of a hierarchy of courts organised on a similar principle— the village
courts, the Munsif, the Civil Judge, the District Judge, the
High Court, and finally the Supreme Court which takes the place of
the King's Court. We are following an ancient tradition without
being conscious of it.
The institution of family judges is noteworthy. The unit of
society was the joint family which might consist of four generations.
Consequently, the number of the members of a joint family at any
given time could be very large and it was necessary to settle their
disputes with firmness combined with sympathy and tact. It was
also desirable that disputes should be decided in the first instance by
an arbitrator within the family. Modern Japan has a somewhat
similar system of family courts. The significance of the family
courts is that the judicial system had its roots in the social system
which explains its success.
The fountain source of justice was the sovereign. In Indian
jurisprudence dispensing justice and awarding punishment was one
of the primary attributes of sovereignty.*
Being the fountain source of justice, in the beginning the king
was expected to administer justice in person, but strictly according
to law, and under the guidance of judges learned in law.t
A very strict code of judicial conduct was prescribed for the
king. He was required to decide cases in open trial and in the court-
*?5TT«r ^TT^T cHT |—
yfw li— wo ?, '***.
*flr m I
U— ibid, ‘I, 360
59
room, and his dress and demeanour were to be such as not to overawe
the litigants. He was required to take the oath of impartiality, and
decide cases without bias or attachment. Says Katyayana : “The king
should enter the court-room modestly dressed, take his seat facing
east, and with an attentive mind hear the suits of his litigants*.
He should act under the guidance of his Chief Justice (Praadvivaka),
judges, ministers and the Brahmana members of his council. A king
who dispenses justice in this manner and according to law resides in
heaven”.**
These provisions are significant. The king was required to be
modestly dressed (vineeta-vesha) so that the litigants were not inti-
midated. The code of conduct prescribed for the king when acting as
a judge was very strict and he was required to be free from all “attach-
ment or prejudice”! Says Narada : “If a king disposes of law suits
(vyavaharan) in accordance with law and is self-restrained (in court),
in him the seven virtues meet like seven flames in the fireft” Narada
enjoins that when the king occupies the judgment seat (dharmasanam),
he must be impartial to all beings, having taken the oath of the son
of Vivasvan. (The oath of Vivasvan is the oath of impartiality :
*fa€Tcr iput SOT 57^T SWT%: I
wrata: irrepft -qyqr qnfw u— q>T° hx
sr TTRmi^: strtft: SOTircr I
sr sr«r: srsn s^f ftsfr snfg - : n— 33T°
tsrarr sn? srfFisg stfot: i
s:ft is fMrficr: n — sto r {, y
f^TTOTr: I
5^: sTRsrf'fenfi^: ti— st° ?, ^
the son of Vivasvan is Yama, the god of death, who is impartial to
all living beings).*
The King’s Judges
The judges and counsellors guiding the king during the trial of
a case were required to be independent and fearless and prevent him
from committing any error or injustice. Says Katyayana : “If the
king wants to inflict upon the litigants (vivadinam) an illegal or
unrighteous decision, it is the duty of the judge (samya) to warn the
king and prevent him.”**
"The judge guiding the king must give his opinion which he
considers to be according to law, if the king does not listen, the
judge at least has done his duty.! When the judge realises that
the king has deviated from equity and justice, his duty is not to
please the king for this is no occasion for soft speech (vaktavyam tat
priyam natra); if the judge fails in his duty, he is guilty .”ft
Delegation of judicial power by the King
As civilisation advanced, the king’s functions became more
numerous and he had less and less time to hear suits in person, and
*3^T3?rteR srpar i
**3fSRTirT 3T5TT 5CP3TT fopffa MOT I
firgrrar 11 — ^t® w
•fa’WsPFT SPTTST TO 1
jpjtfh *rnr dt t:p5TT li — ws
tt^TWRT?^ 3 mi l
wzs&i ^311— ys
6l
was compelled to delegate more and more of his judicial functions to
professional judges. Katyayana says : “If due to pressure of work,
the king cannot hear suits in person he should appoint as a judge a
Brahmin learned in the Vedas.” *
The qualifications prescribed for a judge were very high. Ac-
cording to Katyayana; “A judge should be austere and restrained,
impartial in temperament, steadfast. God-fearing, assiduous in his
duties, free from anger, leading a righteous life, and of good
family. +
In course of time, a judicial hierarchy was created which reliev-
ed the king of much of the judicial work, but leaving untouched
his powers as the highest court of appeal. Under the Maurya Empire
a regular judicial service existed as described above.
Quality of the Judiciary : Integrity
I shall now say a few words about the quality of the Judiciary
and the code of conduct prescribed for judges. The foremost duty of
a judge was integrity which included impartiality and a total absence
of bias or attachment. The concept of integrity was given a very
wide meaning and the judicial code of integrity was very strict. Says
Brihaspati : “A judge should decide cases without any considera-
tion of personal gain or any kind of personal bias; and his
decision should be in accordance with the procedure prescribed
by the texts. A judge who performs his judicial duties in this
*^T * TOW Rt'FT I
to srfi# n— ^ t° sv
62
manner achieves the same spiritual merit as a person performing a
Yajna.”*
The strictest precautions were taken to ensure the impartiality
of judges. A trial had to be in open court and judges were forbid-
den to talk to the parties privately while the suit was pending
because it was recognised that a private hearing may lead to partiality
(pakshapat). Shukra-nitisara says : “Five causes destroy impartiality
and lead to judges taking sides in disputes. These are attachment,
greed, fear, enmity, and hearing a party in private.” f
Another safeguard of judicial integrity was that suits could not
be heard by a single judge, even if he was the king. Our ancients
realised that when two minds confer, there is less chance of corrup-
tion or error, and they provided that the King must sit with his
counsellors when deciding cases, and judges must sit in benches of
uneven numbers. Shukra-nitisara enjoined that “Persons entrusted
with judicial duties should be learned in the Vedas, wise in wordly
experience and should function in groups of three, five, or seven.”!
Kautilya also enjoined that suits should be heard by three judges
(dharmasthastrayah). Our present judicial system, created by the
British, does not follow this excellent safeguard. Today every suit is
heard by a single Munsif or Civil Judge or District Judge for rea-
sons of economy. But the State in ancient India was more interested
in the quality of justice than economy.
frfSRT eww II — i® ?, $-5
^ 1 1
tPT mh li — j p?® ^ *3o
^ 5FTtsPT m ti — ^
6 3
Integrity
Every Smriti emphasises the supreme importance of judicial
integrity. Shukra-nitisara says : “The judges appointed by the king
should be well versed in procedure, wise, of good character and tem-
perament, soft in speech, impartial to*friend or foe, truthful, learned
in law, active (not lazy), free from anger, greed, or desire (for per-
sonal gain), and truthful.”*
Punishment for corruption
Corruption was regarded as a heinous offence and all the autho-
rities are unanimous in prescribing the severest punishment on a dis-
honest judge. Brihaspati says : “A judge should be banished from
the realm if he takes bribes and thereby perpetrates injustice and
betrays the confidence reposed in him by a trusting public.” f A
corrupt judge, a false witness, and the murderer of a Brahmin are in
the same class of criminals.! Vishnu says : “The State should
confiscate the entire property of a judge who is corrupt/’** Judi-
cial misconduct included conversing with litigants in private during
the pendency of a trial. Brihaspati says: “A judge or chief justice
(Praadvivaka) who privately converses with a party before the case
has been decided (anirnite), is to be punished like a corrupt judge.” ft
*s*pr^rtfor* stitt 3#^: 1
ficft m ^ qw: ^nsn%r: 11
=ttITT SrRTT *01%$ II —
f*PM*sw«raTC^r fcwferi ^ % u — - \ o ?, ^
€«r: ^ srtrr I — f o *,
**$H'?ITf)rcTT I 3?#* 5ftf?Rr STRTRr ^ |— fo ^
tfSTW# g I — to
64 ^
Jurors
The most noteworthy feature of the judicial system was the
institution of sabhasada or councillors who acted as assessors or advi-
ser of the King. They were the equivalent of the modern jury, with
one important difference. The jury of today consists of laymen —
“twelve shopkeepers”— whereas the councillors who sat with the
Sovereign were to be learned in law. Yajnavalkya enjoins : “The
Sovereign should appoint as assessors of his court persons who are
well versed in the literature of the law, truthful, and by temperament
capable of complete impartiality between friend and foe.”*
These assessors or jurors were required to express their opinion
without fear, even to the point of disagreeing with the Sovereign and
warning him that his own opinion was contrary to law and equity.
Katyayana says : c The assessors should not look on when they per-
ceive the Sovereign inclined to decide a dispute in violation of the
law ; if they keep silent they will go to hell accompanied by the
King.”t The same injunction is repeated in an identical verse in
Shukra-nitisara.t The Sovereign— or the presiding judge in his
absence— was not expected to overrule the verdict of the jurors ; on
the contrary he was to pass a decree (Jaya-patra) in accordance with
their advice. Shukra-nitisara says : “The King after observing
that the assessors have given their verdict should award the
*PT«T3R WITT I
tifi ^ $ swt: ii — y, =
-hrefo: srfTT f$ swra?: I
#nfc to II — w
I Shukra, IV, 5,275.
successful party a decree (Jaya-patra).”* Their status may be com-
pared to the Judicial Committee of the Privy Council which “humbly
advise” their Sovereign, but their advice is binding. It may also be
compared to the peoples’ assessors under the Soviet judicial system
who sit with the professional judge in the Peoples’ Court but are
equal in status to him and can overrule him.
But there was one exception. If in a difficult case the jurors
were unable to come to a conclusion, the Sovereign could decide the
matter himself. Shukra-nitisara says, “If they (the assessors) are
unable to decide a dispute because it raises difficult or doubtful issues
(sandigdba-roopinah), in such a case the Sovereign may decide in the
exercise of his Sovereign privilege.?
Criminal Trials
In criminal trials it appears that the question of innocence or
guilt of the accused was decided by the judge or the jurors, but the
quantum of punishment was left to the King, t In the trial scene
in Mrichchhakatikf, The Little Clay Court, the judge after pronounc-
ing Charudatta guilty of the murder of Vasantasena, referred the
question of punishment to the King with the remark, “The decision
with regard to Charudatta’s guilt or innocence lies with us and our
decision is binding (pramanam), but the rest lies with the King.”**
SejTT UirjpTfrtf STfSTT^ Wt wq; l|— jpjc
t ¥3: ?tt37: |
swri JRphr: Ib-^o
t The State and Government in Ancient India, by A. S. Alkkar, p. 349. I am
indebted to this work for several valuable ideas.
** cRf JWRT 3 SCF5IT |”—
Interpretation of the text of the law
Principles of interpretation -were developed to a high degree of
perfection. Judges were required to decide cases, criminal and civil,
according to law (samyak, yatha-shastram, shastro ditena vidhina). This
involved interpretation of the written text of the law— a task which
created many problems such as the elucidation of obscure words and
phrases in the text, reconciliation of conflicting provisions in the
same law, solution of conflict between the letter of the law and prin-
ciples of equity, justice and good conscience, adjustment of custom
and smritis, and so on. This branch of law was highly developed and
a number of principles were enunciated for the guidance of the courts.
The most important of them related to the conflict between the
dharma-shastra and the artha-shastra.
Three systems of substantive law were recognised by the court,
the dharma-shastra, the artha-shastra, and custom which was called
sadacbara or charitra. The first consisted of laws which derived their
ultimate sanction from the smritis and the second of principles of
government. The border line between the two often overlapped.
But the real distinction between the smritis and artha-shastra lies in
the approach of each. The approach of the artha-shastra is uniformal-
ly secular, but that of the dharma-shastra not always so. In fact so
remarkably secular is the artha-shastra in its approach to the problems
of government that this has induced some writers to advance the
theory that the artha-shastra (literal meaning : the science of ‘artha’
or pursuit of material welfare), did not evolve from the dharma-shastra
but had an independent origin and developed parallel to it.
Whatever their respective origins, in several matters the artha-
shastra and the dharma-shastra are in conflict. How did the law
courts resolve this conflict when it arose in particular suits ? The first
principle was that of avirodha: the court must try to resolve any apparent
conflict between the two. * (This is called the principle of harmonious
construction today.) But if the conflict could not be resolved, the
authority of the dharma-shastra was to be preferred. Bhavishya-
purana provides : “Whens mriti and artha-shastra are inconsistent,
the provision in the artha-shastra is superseded (by smriti) ; but if
two smritis, or two provisions in the same smriti are in conflict,
whichever is in accordance with equity is to be preferred.”! Narada
smriti lays down a similar rule of interpretation according to reason
in case of conflict between two texts of the smritis.J But while
interpreting the written text of the law, the court was to bear in
mind that its fundamental duty was to do j ustice and not to follow
the letter of the law. Brihaspati enjoined : “The Court should not
give its decision by merely following the letter of the Shastra for if
the decision is completely devoid of reasoning, the result is injustice
(dharma-hani)”.** Brihastpati further says that the Court should
decide according to the customs and usages of the country even if
they are in conflict with the letter of the law ;tt and he gives
several remarkable illustrations which incidentally throw a flood of
light on contemporary social conditions.
farter^
i snfctrei fare: i
% SfsRR II— ?fT= ?, Vo
** SFW53TT qjfa fa^ifa: I
gMft fasrfa g snfaifa vstfr ii — ?o
tt 5yT ttrfa % w VT3) srefatrr: I
ir «rra#TT jrtt ii — % o
He points out that the maternal uncle’s daughter is accepted in
marriage by brahmanas of the south; in Madhya desha (Central India),
brahmanas become hired labourers and craftmen and eat cow’s flesh;
eastern brahmanas eat fish and their women are addicted to drinking
and can be touched by men even when in their monthly courses. On
account of the acts specified these communities, in their respective
countries, should not be liable to undergo penance or incur judicial
punishment.”*
Changing customs : Changing laws
In view of the vital part played by custom (achara, sada-
chara, charitra) in society, the State was required to maintain an
authenticated record of the customs observed in the various parts of
the country. Katyayana enjoins: “Whatever custom is proved to be
followed in any particular region, it should be duly recorded as
established (dharya) in a record stamped with the seal of the Sover-
eign.”! But even an established custom could be formally
“disestablished” if in course of time it became inequitable. In fact,
it was the duty of the Sovereign to remove from time to time the
dead or rotten branches of custom. Katyayana enjoined : “When
the Sovereign is satisfied that a particular custom is contrary
to equity (nyayatah) in the same way— that is in the way it
was established— it should be annulled by a formal decision of the
* wfct usttrr: i
%r: u— % ® it
3rrt 5TSTTT |
wur ii— - f® it
f o?r=rPTT *rr rr'rt i
fsrftr«n § w strt ^nsr ii—^to
Sovereign,”* This remarkable provision indicates how highly
developed was the judicial and legal system o£ ancient India. The
State was required to keep an authenticated record of all valid
customs prevailing in the different regions of the realm.
Very often the decision in a suit depended on proof of the
existence of a custom. Narada says, “The basis of a judicial decision
(vyavahara) may be : (i) dharma-shastra, (2) (previous) judicial
decisions (vyavahara) (or) custom (charitra) or the decrees of the
Sovereign. The authority of these four is in the reverse order, each
preceding one being superseded by the one following it.”t The
artha-shastra contains an identical provision.
Evolutionary concept of law
The significance of these provisions can not be overemphasised.
By gearing law to changing customs Indian jurisprudence gave the
concept of law a secular content. Moreover, it developed the
evolutionary concept of law and rejected the concept of an absolute,
eternal, never-changing law. Both Manu and Parashara say : “The
laws of kritayuga are different from those of treta and dwapara, and
the laws of kali yuga are different from those of all the previous ages—
the laws of each age being according to the distinctive character of
each age (yuga r oopan usaratah) . ” ?
5 11 — vr
to 11— mo
w gwngeKcr: 11— 'rorcrc: w ?rg
Mode of Proof (Law of Evidence)
The law of evidence (the mode of proof) is an index of
the quality of a judicial system. In this respect, the Indian
judicial system was in advance of any other system of antiquity.
In ancient societies proof by supernatural devices, such as trial
by ordeal, was quite common. In England it prevailed till the very
close of the middle ages. But our judicial system prohibited resort
to supernatural devices, if oral or documentary evidence was
available.*
Discovery of truth is real test
The real test of any judicial system is that it should enable the
law courts to discover the truth, and that of ancient India stands
high under this test. “In disputes the Court has to ascertain what
is true and what is false from the witnesses,”, enjoins Gautam.f
All available evidence indicates that in ancient India bearing false
witness was viewed with great abhorrence.* All the foreign
travellers from Megasthenes in the 3rd century B. C. to Huan Tsiang
in the 7th century A. D. testified that truthfulness was practised
by Indians in their wordly relations. “Truth they hold in high
esteem”, wrote Megasthenes.** Fa Hien and Huan Tsiang (who
* f k 5 TTO fipn JTttBT HWHt cfSTT 1— f .0 s, 5
HHHt ftfwr |— %o tf, *
’reNft Trpffr 5r?Trr 1
11—
t R'srrh'Trfl' TOW Hr? I— trfa?To U, ?
t A. L. Basham: The Wonder that was India, p. 116.
** Ancient India as described by Magasthenes and Arian, by Me, Rindle, p. 6-
visited India during the reign of Harsha) recorded similar
observations. A virtue practised for a thousand years became a
tradition.
The procedure and atmosphere of the Courts discouraged
falsehood. The oath was administered by the judge himself, and not
by a peon as today, While giving the oath the judges were required
to address the witness extolling truthfulness as a virtue and condemn-
ing perjury as a horrible sin. Brihaspati says, “Judges who are
well-versed in the dharmashastra should address the witness in words
praising truth and driving away falsehood (from his mind)”.*
The judges’ address to the witness did not consist of set words but a
moral exhortation intended to put the fear of God in him. All the
texts are unanimous on this point, t According to Narada, “The
judges should inspire awe in the witness by citing moral precepts
which should uphold the majesty of truth and condemn falsehood”. J
All the smirtis were unanimous in holding that perjury before
a law court was a heinous sin as well as a serious crime.** There
were other provisions, calculated to reduce the chances of false
evidence being given. Katyayana enjoined, with much common
sense, that there should be no delay in examining witnesses— obviously
because delay dims the memory and stimulates imagination. “The
Sovereign should not grant any delay in the deposition of witnesses ;
* ^ srerai creqrq^r^: i
f Manu, VIII, 79 — 87; Narada I, soO — sa8, Katyayana, 388 — 390; Yajnaa — n.
*73—74-
t qfcnpnf ^ i
** Brihaspati V, 34; Manu VIII, 80—87; Yajna II, 73.74; Narada I, **0-**8;
Baudh I, 13, 14, 19.
for delay leads to great evil and results in witnesses turning away
from the law.”*
Administrative Courts
An important feature of the judicial system of ancient India
were the Special Courts of criminal jurisdiction called the Kantaka-
sodhana Courts. The artha-shastra says, “Three Commissioners
(pradeshtarah) or three ministers shall deal with measures to suppress
disturbance to peace (kantakasodhanam kuryuh).+ According to
the artha-shastra these courts took cognizance not only of offences
against the States but also violations of the law by officials in the
discharge of their official duties. Thus if traders used false weights
or sold adulterated goods, or charged excessive prices, if the labourer
in the factory was given less than a fair wage or did not do its
work properly, the Kantakasodhana courts intervened to punish
the culprits. Officers charged with misconduct, persons accused
of theft, dacoity and sex offences had to appear before the same
court. These Courts had all the characteristics of administrative
courts. The existence of an Administrative Code is indicated in
the Fourth Part of the Artha-shastra.
Administrative Code
The State in ancient India had a public sector of huge dimen-
sions engaged in commerce and industry. The modern capitalist
notion that there should be no industries run by the State would
* IT WT snTTW% I
t snsflw i— v, ?
have appeared idotic to our ancients. Under the Mauryan Empire
there was a state mercantile marine} a state textile industry,
a state mining industry, and a state trading department in charge
respectively of a Superintendent-General of Shipping (Navadhyaksha),
Textiles (Sootradhyaksha), mining (akaradhyaksha), and commerce.
The regulation of each state industry was under its own rules
and all the rules were compiled and classified in the artha-shastra
and may be regarded as an Administrative Code. I shall give
a few illustrations.
The artha-shastra provides a complete Administrative Code
prescribing rules of maritime and riparian navigation. It enjoined
that the State should have a Superintendent-General of Navigation
whose duties are defined thus : “The Superintendent of Ships
shall examine the accounts relating to navigation not only on
the oceans and mouths of the rivers, but also on lakes, natural
or artificial, and in the vicinity of Sthaniya and other fortified
cities.”* The Chapter contains a provision for the ships to have
adequate crew for ships. There were strict regulations to ensure
the safety of vessels : “For navigation on large rivers which cannot
be forded (atarya) even during winter and summer season, there
shall be a service of large boats (mahanavo), with a captain
(shasaka), pilot (niyamaka), a crew to hold the sickle and the ropes,
and to clear the boat of water.” t
The artha-shastra also contains regulations indicating that the
state mercantile marine operated on the high seas and it provided
* *IT I
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W HRt 11- ^0
*
74
that “passengers arriving in port on the royal ships shall pay their
passage money (yatra-vetanam). 5 ’ * The rates were to be fixed by the
Superintendent-General. Incidentally, the existence of this code
proves beyond doubt that the people of India were a sea-faring people
with extensive trade relations with foreign countries.
Similarly, the manufacture of textiles and cotton yam, which
was a huge industry exporting textiles to foreign countries had a
public as well as a private sector. The public sector was under a
Superintendent-General of Textiles (Sootradhyatsha). He had a
large organisation under him. The artha-shastra prescribes the
duties of the Sootradhyaksha and the other officials working under
him. It enjoins : “The Superintendent-General of Weaving shall
employ qualified persons to manufacture threads (sutra), coats (varma),
clothes (vastra), and ropes.”t One of his duties was to give
employment to women in their own homes. Cotton was distributed
among them and spun into thread and either collected by the
department or delivered by the women themselves. But the artha-
shastra contains strict regulation against the taking of liberties with
such women or withholding their wages. It prescribed : “If the
official of the Superintendent stares at the face of such woman or tries
to engage her in conversation about matters other than her work (in
other words, makes what an American would call a pass at her) he will
be punished as if he is guilty of a first assault.! “Delay in payment
of wages shall be likewise punishable.** Another regulation
made it a punishable offence to show any undue favour to a
* qrraT I—
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woman worker. It provided : “If an official pays wages to a
woman for no work done, lie will be punished.”*
Collection of taxes and import duties
There was a code prescribing rules governing the collection of
taxes and import duties. This development was in charge of the
Superintendent General of Taxes (Shulkadhyaksha). The merchants
at the customs were liable to declare their merchandise which had
to bear a seal when imported. Penalties were prescribed for making a
false declaration. One rule enjoined : “If the merchandise bears no
seal, their duty shall be doubled”.! But in case of counterfeit seal,
the merchant was liable to pay a penalty amounting to eight times
the normal duty.! If the seal was torn, the merchant was liable to
be detained in a lock-up reserved for loiterers.**
The Administrative Code in the 4 th Section of the artha-
shastra contains detailed regulations for the control of the other
departments of the State. These regulations were not enforced by
the ordinary courts but by Commissioners (Pradeshtarah) who
functioned as Kantak Shodhana courts.
I shall sum up the fundamental principles on which the judicial
process in ancient India was founded : The trial was always in
publictf and always by several j udges collectively. Cases were heard
* srpr shtr ^ |
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in their serial order except in case of urgency.* Delay in the
disposal of cases was condemned by all authorities and judges who
were guilty of such delay were liable to be punished.! The Sovereign
was not to interfere with the judiciary but on the contrary the latter
was under a duty to interfere in case of a wrong (judicial) decision
by the king.j The judges were to be impartial ; during the
pendency of the suit they were forbidden to have any private talks or
relations with the parties. If a judge was guilty of partiality, or
harassment, or deliberately violated the prescribed procedure, he was
liable to be punished. Corruption was the most heinous offence in
a judge and a corrupt judge was banished from the realm and
forfeited all his property. The procedure for suits was prescribed
by law, and every suit was initiated by a complaint or plaint filed by
the aggrieved party who prayed for the redress of a legal wrong.**
Citizens were strictly forbidden to instigate or finance or file
complaints in which they were not interested, and champerty was a
punishable offence. I cannot do better than quote the verdict of a
very recent English writer : “In some respects the judicial system
of ancient India was theoretically in advance of our own
today. ”tt
* WTCTT? TW5T 5W tffcsTTri: |— SptJo
t ^r«r° I
t W5°, ibid.
** ffpfar srfacr: vt: I
rrrt n--3wo *
“When a person who is the victim of a wrong in violation of the Smritis and
the custom of the realm files a plaint (or complaint) before the sovereign,
this is the commencement of a law suit (Vyavahara)”.
Political Theory of Ancient India: John W. Spellman, Clarendon Press,
Oxford, p. 128.
Part B : Judicial System in Medieval India
After the disintegration oftheHarsha empire a veil of obscurity
descends on the history of India which does not lift till the Muslim
invasion. The country was divided once more into small kingdoms.
But this did not result in any great change in the judicial system
which had taken roots during the preceding thousands of years.
The standards and ideals of justice were maintained in each kingdom,
in spite of political divisions, the unity of civilisation was preserved,
and the fundamental principles of law and procedure were applied
throughout the country. This is indicated by the fact that the great
commentaries on law like Mitakshara and Shukarneeti Sar were
written during this period and enjoyed an all-India authority.
But the establishment of the Muslim rule in India opened a new
chapter in our judicial history. The Muslim conquerors brought
with them a new religion, a new civilisation, and a new social
system. This could not but have a profound effect on the judicial
system.
The ideal of justice under Islam was one of the highest in the
Middle ages. The Prophet himself set the standards. He said in the
Quran, “Justice is the balance of God upon earth in which things
when weighed are not by a particle less or more. And He appointed
the balance that he should not transgress in respect to the balance ;
wherefore observe a just weight and diminish not the balance”.
He is further reported to have said that to God a moment spent in
the dispensation of justice is better than the devotion of the man
who keeps fast every' day and says prayer every night for 60 years.*
* Fakhr-ud-din Mubarak Shah, Edited by D. Ross, p. 19.
Thus the administration of justice was regarded by the Muslim
kings as a religious duty.
This high tradition reached its zenith under the first tour
Caliphs. The first Qadi was appointed by the Caliph Umar who
enunciated the principle that the law was supreme and that the judge
must never be subservient to the ruler. It is reported of him that
he had once a personal law suit against a Jewish subject, and
both of them appeared before the Qadi who, on seeing the Caliph,
rose in his seat out of deference. “Umar considered this to be such
an unpardonable weakness on his part that he dismissed him from
office.”* The Muslim kings in ‘India brought with them these
high ideals. It is reported by Badaoni that during the reign of
Sultan Muhammad Tughlaq the Qadi dismissed a libel suit filed by
the King himself against .Shaikhzada Jami, but no harm was done to
him. (This however 'did not .prevent the Sultan from executing the
defendant without a trial). T Individual Sultans had very high
ideals of justice. According to Barani, Balban regarded justice as the
keystone of sovereignty “wherein lay the strength of the sovereign
to wipe out the oppression”. $ But unfortunately the administra-
tion of justice under the Sultans worked fitfully. The reason
was that the outstanding feature of the entire Sultanate period
was confusion and chaos. No Sultan felt secure for a long
time. One dynasty was replaced by another within a com-
paratively short period, and the manner of replacement was
violent. Consequently the quality of justice depended very much
on the personality of the sovereign.
♦Abdul Rahim: The Principles of the Muhamraedan Jurisprudence, page 21.
f Badaoni; Muntakhab-ut-Tawarikh, quoted by M. B. Ahmad in the Adminis-
tration of Justice in the Medieval India, p, 278.
JBrani: Tarikh Firuz Shahi, p. 77.
^ 79
As a modem writer says, “The medieval State in India as
elsewhere throughout its existence had all the disadvantages of an
autocracy-everything was temporary, personal, and had no basic
strength. The personal factor in the administration had become so
pronounced that a slight deviation of the head from the path of
duty, produced concomitant variations in the whole ‘trunk’. If the
King was drunk ‘his Magistrates were seen drunk in public’.*
Justice is not possible without security, and the Sultans of India
never felt secure. Consequently, the democratic ideal of government
preached by Islam was obscure in India, t During the Sultanate,
Islamic standards of justice did not take root in India as an established
tradition, unlike the judicial traditions of ancient India which had
struck deep roots in the course of several thousand years and could
not be uprooted by political divisions.
Under the Moghal Empire the country had an efficient
system of government with the result that the system of
justice took shape. The unit of judicial administration was the
Qazi— an office which was borrowed from the Caliphate. Every
provincial capital had its Qazi and at the head of the judicial
administration was the Supreme Qazi of the empire (Qazi-
ul-quzat). Moreover, every town and every village large
enough to be classed as a Qasba had its own Qazi. In theory, a
Qazi had to be “a Muslim scholor of blameless life, thoroughly
conversant with the prescriptions of the sacred law.t
According to the greatest historian of the Mughal Empire,
“the main defect of the Department of Law and Justice was that there
* The Administration of Justice in Medieval India, by M. B. Ahmad, p. 272,
quoting Briggs, Rise of the Muhammedan Power in India, Volume I, p. 274.
■flbid., p. 273.
X Encyclopaedia of Islam, Vol. II, page 606.
was no system, no organization of the law courts in a regular grada-
tion from the highest to the lowest, nor any proper distribution
of courts in proportion to the area to be served by them. The bulk
of the litigation in the country (excluding those decided by caste,
elders or village Panchayats mostly for the Hindus) naturally came up
before the courts - of Qazis or Sadars. 5 ’* This view is not accepted
by other writers. t
On the appointment of a Qazi, he was charged by the Imperial
Diwan in the following words :
“Be just, be honest, be impartial. Hold trials in the presence
of the parties and at the court-house and the seat of Government
(muhakuma). Do not accept presents from the people of the place
where you serve, nor attend entertainments given by anybody and
everybody. Write your decrees, sale-deeds, mortgage bonds and
other legal documents very carefully, so that learned men may not
pick holes in them and bring you to shame. Know poverty (faqr)
to be your glory (fakhr).”$ But due to lack of supervision and
absence of good tradition, these noble ideals were not observed.
According to Sircar, “all the Qazis of the Mughal period, with a
few honourable exceptions, were notorious for taking bribes.**
The Emperor was the fountain source of justice. He held his court
of justice every Wednesday and decided a few cases selected personally
by him but he functioned not as an original court but as the court
of highest appeal. There is overwhelming evidence that all the
Emperors from Akbar to Aurangzeb took their judicial function
* Mughal Administration, by Sir Jadunath Sarkar, page 108.
f Administration of Justice in Medieval India: M. B. Ahmad.
J Manual of Officers Duties, a Persian Mss. quoted by Sir Jadunath Sircar,
p. * 7 -
** Ibid., p. 57.
seriously and discharged their duties. ^ Jahangir made a great show of
it and his Golden Chain has become famous in history. The weak-
ness of Indo-Mohammedan Law, according to Jadunath Sircar, was
that all its three sources were outside India.
“No Indian Emperor’s or Qazi’s decisions was ever considered
authoritative enough to lay down a legal principle • to elucidate any
obscurity in the Quran, or supplement the Quranic law by following
the line of its obvious intention in respect of cases not explicitly
provided for by it. Hence, it became necessary for Indian Qazis to
have at their elbow a digest of Islamic law and precedent compiled
from the accepted Arabic writer .... Muslim law in India
was, therefore, incapable of growth and change, except so far as it
reflected changes of juristic thought in Arabia or Egypt.”*
After the death of Aurangzeb, the Mughal Empire collapsed within
two generations. The Provincial Governors and Faujdars arrogated
to themselves the status of sovereigns and awarded punishment for
crim inal offences in their own names. A relic of this usurpation of
the Emperors’ power is the name Faujdari given to criminal trials
even today.
After the conquest of Bengal by the British the process of
replacement of the Mughal system of justice by the British began.
But it took a long time. In fact, the Sadre Diwani Adalat conti-
nued to function till it was replaced by the High Courts.
The Mughal judicial system has left its imprint on the present
system, and a good part of our legal terminology is borrowed from
it. Our civil courts of first instance are called Munsifs, the plaintiff
and the defendant are termed Muddai and Muddaliya and scores of
* Manual of Officers Duties, a Persian Mss. quoted by Sir Jadunath Sircar, p.
115. The Indian legal system today suffers from a similar weakness for its theoretical
foundations are outside India.
other legal terms remind us of the great days of the Mughal
Empire.
Part C : The Judicial System Today
I shall now give a very brief description of our judicial system
today. Barring the Supreme Court, India has no federal judiciary
like the United States. Each State has its own judiciary which
administers both Union and State laws. As during the Maurya
Empire, each district in the State has its hierarchy of judicial officers—
Munsif, Civil Judge, Civil and Sessions Judge— with the District
judge as its head. I shall not give a detailed description of the
organization of our state judiciary, as it is the subject-matter of
another article in this volume.
High Courts
At the apex of the State Judiciary is the High Court. It is a
court of record and not subject to the superintendence of any court
or authority, though appeals from its decision may lie to the
Supreme Court. It consists of a Chief Justice and as many judges as
the President of India may sanction. The number varies from 36 for
the Allahabad High Court to 3 for Assam. The Chief Justice is in
chargeof the administrative work of the Court and distributes judicial
work among his companion judges. He is also consulted in the
appointment of judges in his own Court. But while sitting in Court,
his judicial status is no higher than that of any other judge and his
decisions can be reversed by any two judges in Special Appeal, and
if sitting on a bench of three Judges, he can be overruled by his
colleagues. He has no administrative control over any judge and his
status may be described as primus inter pares (first among equals).
integrity. The Supreme Court has set the pace and its record of
independence is second to none in the -world. The High Courts,
too, on the whole, have maintained a high degree of independence,
and cases of judges carrying favour with the executive have been rare.
The highest praise must go to our subordinate judiciary theMunsifs,
Civil Judges, and District Judges who have dispensed impartial justice
between citizens of different communities and castes, and whose record
compares very favourably with that of British judges who were not
always impartial between Indian and British litigants. Indian Judges
have lived up to the injunction of Brihaspati that a Judge should
decide cases without any motive of personal gain or prejudice or bias
and his decisions should be in accordance with the law prescribed by
the text.
The Weakness of Our Judicial Process
The great weaknesss of our judicial process is that it lacks
theoretical nourishment. The impact on the judicial process of
theories of jurists is profound though unseen and subsconscious.
A great American Judge, Oliver Wendell Homes, wrote, “The felt
necessities of the time, the prevalent moral and political theories,
institutions of public policy, avowed or unconscious, even the
prejudices which judges share with their fellowmen have a great deal
more to do than the syllogism in determining the rules by which
men are governed.” Another great American Judge, Benjamin
Cordozo, observed, “Logic, and history and custom, and utility, and
the accepted standard of right conduct, are the forces which singly
or in combination shape the progress of the law.* Roscoe Pound is
•Nature of the Judicial Process (1921) Cordozo, pp. 133-1 x quoted by Roscoe
Pound in Jurisprudence (1949), Vol. 3 , p. 470.
also of the view that “current moral ideas and ethical customs are
drawn upon continually although seldom consciously.”* The
Supreme Court of India has observed that in determining whether
any restriction on a fundamental right was reasonable, there was no
abstract of reasonableness and it was inevitable that the prevailing
conditions at the time, and the social philosophy and the scale of
values of the judges participating in the decision should play
an important part.f In ancient India the judges were required to be
well versed in all branches of knowledge (vidya) as well as jurispru-
dence and the science of government (dharma-shastrartha kushalai
rartha shastra visharadai).t But what about today ? What is
the legal and social philosophy on which the Indian judges are
brought up today ?
In England, Western Europe, and the U. S. A., the judge and
lawyer have received constant inspiration and education from the
jurisprudence of their civilisation which has been developing for
twenty centuries. Similarly, the judicial process in the U. S. S. R.
derives nourishment from Marxian Jurisprudence which is constantly
evolving. But where does the Indian judge or lawyer receive his
inspiration from ? Not from the jurisprudence of his own civilisa-
tion. He knows something of Roman Law and of the theories of
western j urists but very little about the evolution of the law and
jurisprudence of his own civilisation. The syllabus for the law
degree in an Indian University does not include Indian Jurisprudence
or the theory of the State in ancient India or the History of Indian
Law. Consequently our judicial process is an edifice constructed
# Jurisprudence, Vol. I, p. 474.
f V. G. Rao vs. State of Madras, AIR 1952 Mad. 297.
| Katyayana, 57 .
87
without theoretical foundations, or rather on foundations supporting
other structures in other lands. As an illustration I may cite a
recent decision of the Supreme Court in which a distinction was
sought to be drawn between governmental activities proper and
government’s commercial undertakings which (it was observed) “have
no relation to the traditional concept of government activities.*
Now, traditional concept means a concept according to tradition. But
which tradition : Indian or British or American ? But in India as
I have already indicated the state from times immemoral has had a public
sector. It cannot therefore be said that state commercial enterprises
have no relations to the Indian traditional concept of governmental
activities . The Supreme Court’s observation is founded on a British
or American but not on any Indian traditional concept. Again the
moral and theoretical foundations of our penal code are foreign.
To give an illustration, Manu prescribes public censure as one of the
punishments for crime, t This provision has been adopted by the
Soviet Criminal Code ;i but the Indian Penal Code, drafted by
Macaulay, ignores it altogether, though it can be an effective form
of punishment in many cases. Evidently the Soviet jurists have more
regard for Indian jurisprudence than Indian themselves.
The low standard of legal and juristic studies in India today
creates an urgent problem. On the one hand, our High Courts and
the Supreme Court are invested with the power to interpret the con-
stitution and declare any law or act of the State invalid on the
ground that it is unconstitutional or illegal or restrictive of the
Kasturi Lai vs. State of U. P., A.I.R. 1965 S.C. 1039; 1965 (1) S.C.A. 809.
t rtm fro i
sre h— k,
t Article si, Fundamental Criminal Code of U. S. S. R.
fundamental rights of a citizen. The law declared by the Supreme
Court has a binding supremacy throughout the territory of India,
and its appellate powers are wider than those of any other federal
court in the world. The interpretation of the Constitution and the
adjustment of the rule of law with economic progress require of our
judges a profound knowledge of jurisprudence and the social science
and a capacity for applying the law of social evolution to judicial
process.* On the other hand, the standard of legal education in our
universities and law colleges is very low. A poor legal education
makes poor jurists and judges. The present disparity between the
power and intellectual equipment of those who will be our future
judges creates a problem which the State can ignore only at its
peril.
I am all in favour of our Universities teaching the best that
Western and Soviet thought and science can tell us. But the almost
complete neglect of Indian jurisprudence and political philosophy
leaves the education of every Indian lawyer and judge incomplete.
I have come to the conclusion that the foundation of legal studies
must be the study of Indian jurisprudence and every Indian Univer-
sity should include it as a compulsory subject for the Bachelor of
Law Degree.
I concede that there is much in Indian jurisprudence which is
out of date today. But this is true of every system of jurisprudence.
The Greek and Roman civilisations were based on slavery. The
divine right of kings prevailed in Europe till the end of the 17th
# Our ancient jurists had evolved the evolutionary concept of law and grasped
the scientific truth that the laws must change with social conditions :
-tosh:,* T3
century. The law of reason was often identified with the law of a
Christian God. There was no freedom of belief or worship in
Europe, and many were burnt alive for the offence of heresy, including
Jeanne D’ Arc who today is worshipped as a saint. Women were
tried and burnt for the offence of being witches and men for having
communion with the devil. Some of the peculiar absurdities which
disgraced law and justice in Western Europe are absent in Indian
jurisprudence. Till the very end of the seventeenth century, trials of
animals for criminal offences were taking place in Europe. I shall
cite the following illustrations from Keeton’s Elements of Jurispru-
dence.* In Germany, a cock was solemnly placed in the prisoner’s
box, and was accused of contumacious crowing. Counsel for the
defendant failed to establish the innocence of his feathered client, and
the unfortunate bird was accordingly ordered to be destroyed. In
1508, the caterpillars of Contes, in Provence, were tried and con-
demned for ravaging the fields, and in 1545, the beetles of St. Jean
de-Maurienne were similarly indicted. So late as 1688, Gaspari Bailey
of Chamberg of Savoy was able to publish a volume including forms
of incitement and pleading in animal trials. These absurdities find
no place in their judicial system of ancient India which according to
one British writer was “in advance of our own today.” t
Rights and Duties
An important difference between Indian and Western jurispru-
dence is their respective attitudes to rights and duties. They are
correlated in both systems, but the emphasis is different. In Indian
•Elements of Jurisprudence: Keeton, p.
f John W. Spellman, 1964, p. i*8.
jurisprudence the emphasis is on obligations. In fact, the word
right (adhikar) docs not occur even once in the whole of
the Anushasan Parva or the Arthasastra. Indian jurisprudence is
founded on theories which emphasise that rights are corollaries of the
duties. Even freedom of speech is recognised as a duty to speak
without fear. In Western jurisprudence, on the other hand, rights,
natural or legal, are primary, though every right must have a
corresponding duty. This emphasis on rights in one case and obliga-
tions in the other has had important effect on social institutions
like marriage. Under Indian jurisprudence marriage was a duty, a
job to be performed as one of the many social obligations which
everyone had to perform. But the pre-occupation of Western
jurisprudence with rights has resulted in marriage being looked upon
as an alliance from which each partner tries to get us much as he
or she can. The high rate of divorce is the result of neglecting the
‘duty’ aspect of marriage.
Future role of Indian Judiciary
What shall be the role of our judiciary in the coming social
and economic revolution. The judicial system does not operate in
a vacuum. The administration of justice has a social function and
the judicial process is only a part of the larger social process. There-
fore the courts of law cannot function in defiance or ignorance of the
social objectives or “the felt necessities of times” as Mr. Justice
Holmes called them. The maxim Fiat fiat iusticia et pent mundes
(Justice must be done though the beams may fall) emphasizes the
impartiality of the judges but does not permit the judiciary to be
indifferent to social needs.
In theory the judiciary does not legislate ; it only states what
91
the law is. But as Goethe observed,* “the facts of life are more
potent than abstract theories.”
In practice the judicial process is infinitely more complex than
the bare theory of separation of powers. The judges cannot help
making the law while interpreting it. Under the guise of explaining
the law the U. S. Supreme Court delivered opinions which affected
the destinies of the American people. A former Attorney-General
of the United States writes of the U. S. Supreme Court :
“ this Court has repeatedly overruled and thwarted
both the Congress and the Executive. It has been in angry collision
with the most dynamic and popular Presidents in our history.
Jefferson retaliated with impeachment ; Jackson denied its authority ;
Lincoln disobeyed a writ of the Chief Justice ; Theodore Roosevelt
proposed recall of judicial decisions ; Wilson tried to liberalize its
membership; and Franklin D. Roosevelt proposed to ‘reorganize’
it. It is surprising that it should not only survive but, with no
might except the moral force of its judgment, should attain actual
supremacy as a source of constitutional dogma.
“Surprise turns to amazement when we reflect that time has
proved that its judgment was wrong on the most outstanding issue
upon which it has chosen to challenge the popular branches. Its
judgment in the Dred Scott case was overruled by war. Its judg-
ment that the currency that preserved the Union could not be made
legal tender was overruled by the Sixteenth Amendment. Its judg-
ments repressing labour and social legislation are now abandoned.
Many of the judgments against New Deal legislation are rectified by
confession of error. In no major conflict with the representative
* Grau, teurer freund, ist alle theorie, und grun des lebens goldner baum (Gray,
may friend, is all theory, and green the golden tree of life)— Faust, Scene IV.
92 c&e.
brandies on any question of social or economic policy has time
vindicated the Court/ 9 *
Indian Constitution, a Synthesis
The role of the Indian judiciary cannot be isolated from the
social objectives of the nation. Our Constitution has set before the
Indian people the ambitious goal of achieving a synthesis of the
Western and the Communist way of life, individual liberty and
social control, abolition of anarchy in production and preservation
of democracy in Government— in a word, of political and economic
freedom. I must not be understood to mean that there is absolutely
no political freedom in the Soviet State or economic progress in the
Western democracies. The division of the world into black and
white and with no shades of grey is good propaganda for the “cold
war 99 but a poor statement of facts. The difference is one of emphasis.
The Soviet system placed economic progress before political freedom
because the Soviet Government has uptil now been struggling with
the problem of transforming a multi-national, multiracial, multi-
lingual, and multi-religious community living in a huge, sprawling,
state into a modem industrial nation. Today the words “economic
planning” and “political democracy” are accepted on both sides of
the so-called iron curtain. Our Constitution attempts to achieve a
synthesis of the two. It reflects the spirit of non-alignment in the
field of constitutional law. Social control of industry is in accord
with the Indian tradition. I have already indicated that the state
in ancient India had a huge public sector, and the Arthashastra
prohibits such trade practices as cornering the market to raise prices.
•The Struggle for Judicial Supremacy: Jackson.
The Indian Constitution has set before our people a very
ambitious and diffi cult goal. A Constitution is not a collection of
abstract theories, nor does it operate in a vacuum. It reflects a way
of life which enables a particular people to realise its objectives and
ambitions. If it fails to do this, it will be amended or discarded by
agreement or otherwise. The compulsive forces of social life are
irresistible in the end.
Condition of National Survival
The people of India has taken upon itself the titanic task
of the transformation of her economy within one generation. Our
State is determined to achieve within a few years what took Britain
and other countries several centuries. There is no choice left for
India in this matter. The Himalaya is no longer our shield. Indus-
trial strength has now become a condition of our survival.
The only other country in the world which was able within a
single generation to transform itself from a backward rural and
agricultural community into a modern industrial and highly power-
ful state is U. S. S. R. But the political system of the Soviet State
is very different from that of India. We are living under a Consti-
tution based on the, principle of the parliamentary democracy, which
has the merit of acting as a brake on the arbitrary exercise of power.
But a brake is a brake; it provides safety, not speed. And what India
needs is speed in social and economic revolution, because our very
survival as a nation depends upon the speed of our economic deve-
lopment. Is it. possible to achieve a rapid economic transformation
under the present system of laws? This is the fundamental question
facing not only India but the whole of the non-communist world.
This problem was stated ten years ago by an American journal, in a
special article devoted to India, in the following words :
“Nikita Khruschev has challenged the West to compete against
Communism in the task of developing the under developed lands . . .
And as the Fifties give way to the Sixties the question that India
faces is : can these poor people, multiplying at the rate of 9 million a
year be kept alive under a system of free parliamentary government ?
Or will India be forced, in a desperate attempt to keep its masses
from starving to throw aside its democratic institutions (as much of
Asia already has) and adopt in their place the ruthless methods of
communist China.*
It is no exaggeration to say that on the ability, wisdom, and
patriotism of our future judges depends to some extent the future of
the rule of the law and parliamentary democracy in India. But wise
judges do not drop like Ganga from heaven: they grow out of the
social soil and are nurtured by the social atmosphere. Great judges
are not born but made by proper education and great legal tradi-
tions, as were Manu, Kautilya, Katyayana, Brihaspati, Narada,
Parashara, Yajnavalkya, and other legal giants of ancient India, The
continued neglect of legal education is against the national interests.
* News Week, Dec 19, 1959, Challenge of Communism.
Origin and Growth of the High Court
By
SRI SWAMI DAYAL
Advocate, High Court , Allahabad
HE growth of the British power in India was the gradual trans-
formation of trade into sovereignty. This transformation
determined the manner and method of the evolution of the judicial
administration in this country. The idea of administering justice
for the British subjects born out of necessity was gradually
extended, with the growth of power, to Indians though through
a circuitous channel.
After the settlement of Calcutta had been founded by Job
Chamock in 1690, there was a gradual increase of the British popula-
tion in India and the necessity was felt of a Court, which could
dispense justice to them in accordance with English law. Thus in
1726 the Mayor’s Court was established in the town of Calcutta,
which was also constituted a Court of Oyer and Terminer. Similar
Courts were also established in Bombay and Madras.
These courts administered English law which was assumed to
be the lex loci of the Settlement. The inhabitants of the settle-
<*>2^ 97
m rn t resorted to the English flag and were governed by the
English law, irrespective of their nationality. Outside the settle-
ment, Indians were supposed to be living in their own country and
were subject to their o\tn laws, the task of administering which had
been taken upon, since the disintegration of the Mughal
sovereignty, by their erstwhile deputies and governors.
Supreme Court in Bengal
In 1773, the British Parliament passed the Regulating Act
(13 Geo. Ill Ch.63) whereby the power to constitute a Supreme
Court in Bengal for the British subjects and the employees
of the Company or those of the British subjects was conferred
upon Her Majesty. The Charter of 1774, in pursuance of
the Regulating Act, establishing the Supreme Court in Bengal,
did not, however, repeat the limitations mentioned in the Act,
and this omission led to a sharp conflict of opinion about
the jurisdiction of the Supreme Court. Not infrequently, the
Supreme Court, without drawing any light from the Regulating
Act, overstepped the bounds of its jurisdiction, and thus
commenced, in Bengal, an era of confusion, described by
Macaulay in his Essay, as a “reign of terror; heightened by mystery
for even that which was endured was less horrible than that which
was anticipated.” * But for this omission in the Charter of the
Supreme Court, perhaps Raja Nand Kumar would not have met his
doom, nor would the Raja of Cossijurah have had to abscond, to escape
the clutches of the assumed jurisdiction of the Supreme Court.
•Macaulay’s Essay on Warren Hastings. About the Regulating Act he observed:
“The negligent manner in which the Regulating Act had been framed put
it in the power of the Chief Justice to throw a great country into the most dreadful
confusion.”
Mufassil Courts ia Bengal, Bihar & Orissa
The administration of justice, established for Indians
living outside Calcutta was different. In the year 1765
Robert Clive secured in perpetuity, for the East India Company,
the Dewani of Bengal, Bihar and Orissa from the Moghal Emperor
Shah Alam, who was still considered to be the Ruler of the Coun-
try, against a payment of Rs. 2 6 lacs. By this grant the Company
claimed to have become the virtual sovereign and master of this
territory.
The outcome of this grant, was a new system of adminis-
tration of justice. The proposals made by Warren Hastings and his
Council on 15.8.1772 were adopted by the Government on 21.8.1772.
“Under this plan, which contains some original provisions, yet pre-
served in our judicial code, Mofussil Dewanny Adawluts, or provincial
courts of civil justice, under the superintendence of the collectors of
revenue, were established in each district.”*
Ip. 1774 an alteration was made in the set-up of these courts by
the withdrawal of the Collectors and appointment of provincial councils
in six divisions. On 28.3.1780, however, it was decided to establish
distinct courts in the six divisions, which were made independent of
the provincial councils.
Under the Regulations passed on 21st August, 1772 made
in pursuance of the said grant, the Criminal courts, designated as
Faujdari Adalats were also established and placed under the
superintendence of Collectors of Revenue. Later, on igth October,
1775 their superintendence was entrusted to Naib Nazim who
appointed Foujdars to preside over the said Courts. In 1781, “the
•Harington’s Analysis, Vol. I, Section II, P. 20.
99
institution of Foujdats not having Answered the intended purposes
a change was brought about. The criminal courts were contiuned
in the several divisions subject, as before, to the superintendence of
the Naib Nazim but the English judges of the Dewani Adalats
were appointed Magistrates, with a power to take cognizance of
offences, apprehend their perpetrators and commit them to the nearest
criminal court for trial.
The authority of the English Magistrates so appointed was
ineffective over the Zamindars and Landholders and consequently “the
administration of justice in criminal cases was much impeded”.
On 27th June, 1787, therefore, the Magistrates were vested with
authority to decide, upon complaints, petty offences such as petty
affrays, abusive names, etc. The trial of serious offences, however,
as before, were long delayed resulting in increase of crimes. On 3rd
December, 1790, therefore. Regulations were passed whereby ‘Courts
of Circuit’ under the superintendence of English Judges, assisted by
persons well-versed in Mohammedan Law, were established for trying in
the first instance cases of crimes and misdemeanours. The Regulations
with regard to Criminal courts were consolidated and re-enacted in
Reg IX of 1793.
The Revenue Administration in this country also owed its
origin to the grant of Dewani whereby the East India Company had
become responsible for the collection of Revenue. Prior to 1771
the task of settlement and collection of revenue was carried on by
the covenanted servants of the Company in Calcutta, Twenty-four
Parganas, Burdwan, Midnapore and Chittagong. In other parts the
Dewans at Murshidabad and Patna were responsible for collecting
the Revenue. In 177 1 the Directors of the Company declared their
resolution to take up the entire care and management of the Revenues
through the agency of the Company’s servants.
For the adjudication of questions with regard to revenue
arising between the Government and the landholders and disputed
claims between the landholders and their tenants or ‘Ryots’ the ‘Mai
Adawluts’ or revenue courts were established. These courts were
presided over by the Collector and appeals from their decisions lay to
the Board of Revenue and then on to the Governor-General-in-Council.
The financial occupations of the Collectors, however, disqualified
them from exercising judicial functions and adjudicating upon their
own acts. By Regulation II of 1793, therefore, the Mai Adalats were
abolished and their jurisdiction was transferred to the Civil Courts.
Collectors were only responsible for collection of revenue.
Sadar Diwani and Nizamat Adalats in Bengal Presidency
By the Regulations of 1772 the Sadar Diwani Adalat was
instituted in the Presidency under the superintendence of three or
more members of the council to hear appeals from the Diwani
Adalats in causes exceeding the value of five hundred rupees, on
18-10-1780, a separate judge. Sir Elijah Impey, was appointed to
the charge and superintendence of that court. This appointment was
alluded to, by Macaulay, as being “neither more nor less than
a bribe”, to get rid of the conflict between the Judiciary and the
Executive. By the same regulations the Sadar Nizamut Adalat was
established at Murshidabad which was presided over by a Darogah
appointed by the Nazim.
The jurisdiction of the Dewani Adalats was defined by
Reg. Ill of 1793 whereby British subjects were expressly
excluded from their jurisdiction with certain exceptions. The
designation of the Dewani Adalats established in the cities
of Murshidabad, Dacca and Patna were after the name of
these cities, while of those established in the several Zillahs
were after the name of the district or Zillah. By Reg. V of the
same year four Provincial Courts of Appeal were established which
besides having Appellate jurisdiction also had original jurisdiction
in certain matters. Appeals from the Zillah and City courts (Dewani
Adalats) which so far lay directly to the Sadar Dewani Adalat were
now to be filed in these Provincial Courts and appeals against their
decisions were to be filed in the Sadar Dewani Adalat. It is
interesting to know that the Sadar Dewani Adalat ordinarily sat
only for three days in a week. The Sadar Dewani Adalat and
Sadar Nizamat Adalat of Bengal, were now to be presided over by
the Governor General and the members of the Supreme Council.*
The courts thus established were meant to dispense justice to
Indians and had no authority over British subjects, for the Company
could hardly claim to derive authority over them from the Mughal
Emperor.
Courts in Banaras Province
The territory around Banaras was ceded to the East India
Company by the Nawab Vazir of Awadh in the year 1775. la the
Banaras Province, as it was then known, unlike Bengal the establish-
ment of Criminal Courts preceded that of Civil Courts.
Criminal Courts
In 1781 a court of justice vested with Criminal jurisdiction
•This constitution of the Sadar Courts as provided by Rees. VI and IX of i7qa
respectively was altered by Reg. II of 1801 and a Chief Judge and other judges were ap-
pointed for presiding over these courts. jo r
was established in the city of Banaras, and in 1788, courts with
similar powers were established in the districts of Ghazipur, Jaunpur
and Mirzapur. The Resident at Banaras was to act as Magistrate
throughout the Province of Banaras. In 1795 by Regulation, XVI
the judges of the Dewani Adalats, established the same year in the
city of Banaras and in the three aforesaid districts, were empowered
to act as magistrates within their jurisdiction and this power so far
enjoyed by the Resident at Banaras, was resumed from him. A
court of Circuit, having similar powers as those in Bengal for the
trial of serious offences, was created by the same Regulation, at Banaras.
This Court was subordinate to the Sadar Niazmat Adalat of Bengal.
Civil Courts
Regulation VII of 1795 was responsible for establishment of
Civil Courts in Banaras Province. A city court in Banaras and three
Zillah courts in Jaunpur, Mirzapur and Ghazipur were established.
The jurisdiction, power and authority, enjoyed by similar courts in
Bengal, were extended to these courts and the rules of procedure
framed by the former were made applicable. By Reg. IX of
the same year a Provincial Court of Appeal was set up in Banaras
to exercise jurisdiction in the Banaras Province, which consisted
of the city of Banaras and the three Districts of Jaunpur, Mirzapur
and Ghazipur. The Provincial Court was to hear Appeals against
the judgments of the city and Zilla courts and appeals against
its decisions lay to the S udder Dewani Adalat of Bengal, Bihar and
Orissa, the jurisdiction whereof was extended to Banaras Province
by Reg. X of 1795.
In 1801 a major portion of the area, later known as the
Agra Province, was ceded to the British by the Nawab of
103
Awadh, and in 1803 Zilla courts were constituted in the districts
of Moradabad, Bareilly, Etawah, Farrukhabad, Kanpur, Allahabad
and Gorakhpur (Vide Reg. II of 1803). In the same year by Reg.
IV a Provincial Court of Appeal was also established at Bareilly for
exercising appellate jurisdiction over these Zilla courts.* Appeals
against the decisions of the Provincial Court of Appeal also had to
be filed in the Sadar Dewani Adalat of Bengal. Out of the territories
ceded by the Peshwa and Daulat Rao Sindhia six districts were formed
by Reg. IX of 1804.
By Reg. VIII of 1805 five new districts were formed out of
the conquered provinces, within the Doab and on the right bank of
Jamuna, excepting Delhi, as also out of the territory of Bundelkhand
ceded by the Peshwa. These districts were Aligarh (then spelt as
Allyghur) northern Zilla of Saharanpur, the southern Zilla of Saha-
ranpur, Agra and Bundelkhand. By the same Regulation, Zilla
courts were established in these districts. The two parts of Saha-
ranpur were, however, amalgamated in 1806. Appeals from these
Zillah courts lay to the Provincial Court established by Regulation
IV of 1803 and further appeals to the Sudder Dewani Adalat.
Dehra Dun and Kumaon, which had been acquired from Nepal, were
brought under this legal system in 1817 (Regs. IV and X).
Due to ‘defects' in the superintendence of Criminal and Revenue
Administration, nine divisions were created in 1829 out of the ceded
and conquered territories, later known as the North Western Pro-
vinces, and each division was placed under a ‘Co mmis sioner of
Revenue and Circuit.’ The Provincial Courts of Banaras and Bareilly
no longer remained Courts of Circuit and the power to hold “sessions
# For further details about the Provincial Courts- of Appeal reference may
be made to Harington’s Analysis, Vol. I, Ps. 109 and 419.
104
of goal delivery” enjoyed by them was transferred to the Com-
missioners (vide Reg. I of 1829).
The amalgamation of the Civil and Criminal jurisdiction was
effectuated by Reg. VII of 1831 providing for appointment of Zillah
Judges as Sessions Judges whenever deemed advisable, though appeals
from the orders of Magistrates lay, as before, to the Commissioner.
Like the Commissioners, the Sessions Judges were subordinated to
the Sudder Nizamat Adalat of Bengal.
To relieve the Zillah and City Judges against rush of work
provision was made for the appointment of Principal Sadar Ameens,
whenever necessary, by Reg. V of 1831. They were to try such appeals,
against the decisions of Munsifs, and original suits, not exceeding
five thousand rupees, as the Zillah or City Judges referred to them.
Sadar Adalats in Western Provinces
The Sadar Dewani and Nizamat Adalats were established in
the Western Provinces consisting of the Province of Banaras
and the ceded and conquered provinces, in 1831 by Reg. VI,
ordinarily to be stationed at Allahabad, and all the nine divisions
created in 1829 were placed within its jurisdiction. These courts
were the outcome of discontent and disquietude caused by expense,
difficulty and delay experienced by the inhabitants of these parts
in prosecuting their appeals in Bengal. Though, difference in the
climate of Bengal was, in the preamble of Reg. VI of 1831,
attributed to be the factor deterring individuals from personally
resorting to the highest appellate courts in Bengal, the vagaries
of a long journey with slow means of communication available then
appear to be the more probable reason. Later these courts were
shifted to Agra.
By Reg. X of 1831 a Board of Revenue was created at
Allahabad and the Revenue administration, hitherto under the Board
of Revenue in Bengal, was taken up by it.
In the year 1833 by Reg. II the Provincial Courts
of Appeal were abolished and while their appellate jurisdic-
tion including the pending appeals, were transferred to the
Sadar Dewani Adalat, the original jurisdiction including the
pending suits were transferred to the several Zillah and City
courts.
Formation of the North-Western Provinces
In the year 1836 the North-Western Provinces were formed
out of the territory around Banaras ceded by Avadh in 1775 other
territories ceded in 1801 and thereafter, the conquered territories
acquired from the Maharaja of Sindhia in 1803, a portion of
Bundelkhand acquired from the Peshwa ; and the territory then
known as the hill districts acquired in 1816 from Nepal. The ceded
territories now cover the greater portion of Uttar Pradesh. Until
1861, when the Central Provinces were created, the Sagar and
Narbada territories ceded by the ruler of Nagpur were also part of
the North Western Provinces. Jhansi, which lapsed to the Company
in the year 1853, also became part of the North-Western Provinces.
The Delhi territory which also formed part of the North-Western
Provinces was later transferred to Punjab in 1858.
The regulation districts, * the ceded and conquered districts
•Keith, in his ‘Constitutional History of India’ observes at page 152. “The earlier
acquisitions were treated as extensions of Bengal, and the regulations of that Presi-
dency were applied thereto with necessary modifications. But areas taken from Nepal
and the Delhi territory were excepted, ”
and the Bundelkhand area were all subject to the judicial and
administrative Regulations of Lord Cornwallis. Collectors were
confined to functions concerning revenue, while judges and
Magistrates dealt with the civil and minor criminal cases, subject
to the control of the Sadar Diwani and Nizamat Adalats.
The importance of the city of Allahabad assumed a greater
magnitude, when, in 1858, Lord Canning shifted the seat of the
Government from Agra to Allahabad.
Formation of Avadh
Avadh was annexed to the territories of the East India
Company in 1856 and the twelve districts of Lucknow, Bara Banki,
Faizabad, Sultanpur, Hardoi, Rae Bareli, Pratapgarh, Unnao, Gonda,
Bahraich, Sitapur and Kheri were placed under a Chief Commissioner.f
Constitution of High Courts in India
In the year 1861 the Indian High Courts Act and the Indian
Councils Act were passed by the British Parliament. The former
provided for the abolition of the Supreme Courts of Judicature
and the Sadar Diwani Adalats and the constitution of the High
Courts of Judicature in their place in the three Presidency towns.
By section 16 a power was reserved to Her Majesty to constitute
similar High Courts in other territories which were not within the
local jurisdiction of any of the three proposed High Courts of
Calcutta, Bombay and Madras. The Indian Councils Act empower-
ed the Governor-General to create local Legislatures in various
f The charge was amalgamated with the Lieutenant Governorship of North West-
ern Provinces in 1877.
provinces, though the exercise of this power, with regard to the
North Western Provinces was not made till the year 1886.
The Calcutta, Madras and Bombay High Courts were establish-
ed by the Royal Charter in the year 1862. In 1865, however, fresh
Letters Patents were issued for these courts which are also known
as the amended Letters Patent.
Charter of N. W. P. High Court
The 17th of March, 1866, marked the beginning of a new era
in the administration of justice in this State. A High Court of
Judicature for the North Western Provinces consisting of a Chief
Justice Sir Walter Morgan and five other judges was established by
the Royal Charter. The position that enured in the North Western
Provinces on the eve of this memorable day, a hundred years ago, was
not largely different from the conditions prevailing in the Presi-
dencies. The dual system of justice, similar to that which had
prevailed in Bengal, but with added rigour, prevailed in the North
Western Provinces. Being within the Presidency of Fort William,
the North Western Provinces were under the sway of the Calcutta
High Court in certain spheres, while the Company’s courts, with the
Sadar Diwani and Nizamat Adalats at the top of the hierarchy
shouldered the main responsibility of administration of justice civil
and criminal.
Conferment of Jurisdiction
Broadly stated, the Charter of 1866 conferred upon the newly
formed High Court, Civil, Criminal, Testamentary and Intestate as
well as Matrimonial jurisdictions. The significant feature of the
Charter was the amalgamation of the dual system of administration of
justice and transference to the New High Court qua some matters, of
the jurisdiction exercised by the Calcutta High Court and that of the
Sadar Courts with regard to the rest. The conferment of guardianship,
lunacy, testamentary and intestate jurisdictions, on this High
Court was made by incorporating the powers exercised by the High
Court at Fort William. Judging from the amount of confusion that
had been created by the adoption of a similar provision in the Charters
of the Presidency High Courts, vis-a-vis their respective Supreme
Courts, avoidance of this provision would have been desirable.
If not to the same extent as in Bengal and other High Courts,
confusion did occur in this High Court as well, in some cases;* but,
the same has now been removed, to a great extent, by the recent
pronouncement of the Full Bench of this Court, in the noted case
of Reeta Rani v. Raghuraj Singh, reported in A. I. R. 1965 All.
380 : 1965 A. L. J. 54.
Law to be Administered by the High Court
So far as criminal jurisdiction was concerned, clause 23 of the
Allahabad Charter prescribed application of the Indian Penal Code.
With regard to civil cases the characteristic vagueness reappeared.
Cases coming before the High Court in its extraordinary forum were
to be decided according to law or equity that would have been
administered by the courts of trial, until otherwise provided. On
the Appellate side, the High Court had to apply ‘the Law or Equity
and rule of good conscience,’ that were to be applied by the
courts of trial.
* In the case reported in I.L.R. 4 All. 1 59, which may be cited as an instance,
this court had even to ascertain the practice prevailing in the Calcutta High Court on
the original side in the Lunacy jurisdiction.
The exact connotation of the phrase £ law or equity and rule
of good conscience ’ was not and is not easily ascertainable, parti-
cularly because it also carried a historical background. Within
the Presidency towns the English law was the lex loci , the
only exception being for Hindus and Mohammedans who were
allowed the benefit of their personal laws in certain spheres.
Outside the Presidency towns. Regulation IV of 1793 had
provided that in suits regarding succession, inheritance, marriage,
caste and all religious usages, the Hindu and Mohammedan Laws
were to be applied by the courts ; but this provision was con-
fined in its application to Hindus and Mohammedans only. For other
persons and other types of suits there existed no rules of guidance
except that the judges were to act in accordance with “ justice,
equity and good conscience
In course of time the population of India, even outside the
Presidency towns, could no longer be regarded as consistingof Hindus
and Mohammedans alone. Besides British subjects, aliens had settled
down in India. A new class of Anglo-Indians had sprung up. The
number of Indian Christians was also on the increase. On account
of their peculiar situation, their mixed ancestry and the abandonment
of their old moorings, the Anglo-Indians and the Christians could
not fall back upon their personal laws, and even if, in some
cases, they could, the difficulty of ascertaining their personal laws
deterred the judges from applying them. The Courts had of neces-
sity to fall back upon “ justice or equity and rule of good conscience
It must be remembered that unlike English jurisprudence
where the distinction between equity and law was well marked, the
use of this phrase in the Bengal Regulations and elsewhere’ was
merely a directive to the courts to administer the law that was
applicable, to apply the principles that reason dictated and to
dispense justice which the case merited. The forms that ‘ justice ,
equity and good conscience 5 had assumed, in practice are by no
means uninteresting. For, instance in Stephen vs. Hume (Fulton’s
Reports, p. 224) Sir John Peter Grant, in his dissenting judgment was
of the opinion that Mohammedan Law was applicable to Armenians in
Dacca*.
High Court Functions
Soon after the issue of the Letters Patent, on 16th June, 1866,
the first Rules of Practice of the Court were framed and on 18th of
June, 1866 the first sitting of the Judges of the High Court of
North Western Provinces took place at Agra. The building and
surroundings, in which the High Court was situate at Agra, did not
befit the dignity of the highest Court of Appeal and in the year 1869
the High Court was shifted to Allahabad in the building on the
Queen’s Road, now Sarojini Naidu Marg, which at present houses the
Board of Revenue, U. P. There is no record of any ceremony having
been held at Allahabad and quietly and unostentatiously the Judges
commenced their duties. The name of the Law Reports was
altered from ‘ Agra High Court Reports 5 to ‘ N. W. P. High
Court Reports ’.
Civil Courts in Avadh
The Civil Courts and the Court of the Judicial Commissioner,
in Avadh were formed by Act XIV of 1865. In the year 1871
*Sir George Rankin, in his book "Background to Indian Law” has admirably
dealt with this subject at pages 22 to 45.
the Oudh Civil Courts Act (XXXII of 1871) was passed by
the Governor-General-in-Council to consolidate and amend the
laws relating to Civil Courts in Avadh. Besides constituting
Civil Courts in a reformed shape, the Judicial Commissioner’s
Court was re-constituted as the highest court by this Act. The
Judicial affiliation of Avadh to the High Court was clearly
discernible in Sec. 23 of this Act which provided that if the
Judicial Commissioner entertained any doubt as to the decision to
be given by him he was to make a reference to the N. W. P. High
Court and the case had to be decided in accordance with the judg-
ment of the High Court. The Avdh Civil Courts Act (XIII of
1879), however, omitted the provision.
Sir Walter Morgan, the first Chief Justice of the High Courts
named in the Charter itself, retired in 1871 and in his place. Sir
Robert Stuart became the Chief Justice.
In the year 1874 by virtue of the powers conferred by Sec. 3
of 28 Yict. Ch. 15 the Governor-General-in-Council was pleased
to bestow upon this Court the original and appellate criminal
jurisdiction in respect of European British subjects in Avadh, Jabal-
pur division in Central Provinces (Madhya Pradesh), the line of Rail-
way from Allahabad to Jabalpur, Morar, and Ajmer, British Merwara
as well as those residing in Rampur, Rewa, Panna, Gwalior, Bikaner
and various other Ruling States.* Regarding Avadh this jurisdic-
tion ceased, in 1925, when the Chief Court was created. In other
respects these Indian States claimed to be sovereign and were dis-
pensing justice according to their own laws and through their own
machinery.
*Vide Notification of the Government of India, Home Department (Judicial)
No. 1303, dated 33rd September, 1874.
The Law Reports so far known as ‘N. W. P. High Court
Reports’ yielded place to the ‘Indian Law Reports’ which took
over the task of reporting the decisions of the High Court from
the year 1876.
On 26th November, 1886 the North Western Provinces were
provided with a Legislature, viz. the Lieutenant Governor’s Legisla-
tive Council, and the manner of enacting laws thereafter underwent
a radical change. Though the voice of the people in making
the laws, was faint and feeble yet the laws were chosen rather than
imposed.
Sir John Edge, who later adorned the Judicial Committee of
the Privy Council, became Chief Justice of the High Court in 1886.
An episode, which may be of particular interest to the judicial
community occurred in his regime. In July 1887 a bill was intro-
duced in the House of Lords for amalgamation of Avadh with the
North Western Provinces. The bill had passed through the House
of Lords and even had a first reading in the House of Commons. It
contained a provision, in Sec. 2 to the effect that it was lawful for
Her Majesty from time to time to enlarge and extend the limits of
the territorial jurisdiction or the jurisdiction over persons, of any
High Court, of Judicature in India and further to grant such powers
or make such provision “for the purposes of regulating such courts
after its jurisdiction shall have been extended or enlarged”. In
Sec. 3 the power to direct the place or places where one or more
Judges of the Court may sit was vested in such local authorities as
the Governor-General-in-Council may nominate. There did not exist
a practice of consulting the Judges about legislation concerning their
jurisdiction and the proposed bill was not referred to the Judges of
the N. W. P. High Court for opinion. A copy of the Bill was,
perchance, sent by a personal friend of Sir John Edge from London.
113
Sir John Edge consulted his colleagues one o£ whom was the
distinguished Syed Mahmud and having reached the conclusion that
the Bill needed some drastic changes he took the liberty of sending,
on 21st July, 1888, a telegram to Mr. Macpherson of the India
Office, commenting upon the said Bill, in the following terms :
“We doubt words High Court Bill, purposes of
regulating empower appointing Additional Judges. Deprecate
Sec. 3 depriving Chief’s control over composition of
Benches.”
The next day Sir John Edge sent a detailed letter to Sir
Alfred Lyle at the India Office, a copy of which was endorsed to Mr.
Macpherson and to Sir Auckland giving in detail the reasons for his
protest. In his letter Sir John Edge, speaking for himself as well as
for his colleagues adversely commented upon the proposed bill. With
regard to Sec. 2 he remarked “It appears to Straight, Tyrell,
Mahmud and me that the words ‘for the purpose of regulating
such court’ limit the power conferred on Her Majesty by the
earlier part of Sec. 2 of the Bill. We doubt very strongly whether
Her Majesty could under Sec. 2 alter the constitution of the Court
by making it consist of a Chief Justice and six judges instead of a
Chief Justice and five judges. This is a matter which requires very
careful consideration. This point may possibly have escaped the
attention of those who advise the Secretary of State .” With regard
to the matter of prescribing the place or places of sitting of judges
Sir John Edge observed “As we read Sec. 3 of the Bill it will be for
the Lieutenant Governor and not for the Chief Justice to give
directions as to the particular judges who from time to time shall
th %t ru C f t° W - lf 4 BeflCh iS t0 Sit there< 1 do not kn °w if the
other Chief Justices have been consulted about Sec. 3 of the bill
have not. The strong feeling of the judges here is that it should
^ 6 = 114
be for the Chief Justice to determine from time to time which
judges should sit at Lucknow. Personally I have no objection that
the responsibility for the efficient disposal of the judicial work at
Lucknow should be on the shoulders of the Lieutenant Governor
and not on mine. Time will show whether this departure from
the lines of Sec. 14 of the 24 and 25 Viet. Chap. CIV will work
well or ill for the interests of the public and the Government”.*
Remarkable as it may appear, the said Bill was dropped and
another Bill was substituted in its place which left matters of detail
to be provided by a supplemental charter. It is noteworthy that
this time a copy of the new Bill was formally sent to the High
Court on 9th January, 1889 for its comments.
After deliberation, the judges seat their comments on 15th
January, 1889. Justice Mahmud expressed his views in a separate memo
as he differed with the opinion formed by other j udges on vital points.
Amongst the points of difference was an important suggestion
made by him with regard to clause 27 of the Letters Patent.
Justice Mahmud was of opinion that the principle of seniority of
the Judge in relation to the prevalence of his opinion had already
been abrogated by Sec. 98, C. P. C. in cases of First Appeals, Second
Appeals and other Miscellaneous proceedings and since it was
doubtful whether it covered proceedings such as Review applications
coming before a Bench of the High Court consisting of more than
two Judges, hence in his view clause 27 of the Letters Patent was
accordingly to be deleted or modified.! This suggestion of Justice
Mahmood, though disregarded by his colleagues was accepted by his
*Both the telegram and the letter of Sir John Edge are preserved in the High
Court Records.
-[•Reference may be made to the Original Minutes of meeting preserved in
the High Court Records.
successors and was incorporated in the amendment of the Letters Patent
in 1928. Much time of Legislatures of this sovereign republic
of India spent over amending and validating Acts, could be saved
if obtaining of the opinion of the judges upon proposed bills
was made an inviolable practice, at least with regard to matters
concerning their jurisdiction.
In 1890 by Act XX known as the North Western Provinces
and Oudh Act, the Revenue Administration of Avadh was brought
under the Lieutenant Governor of North Western Provinces while
the Board of Revenue for the North Western Provinces was consti-
tuted as the highest authority in Revenue administration of Avadh
and was renamed as the Board of Revenue of North Western Pro-
vinces and Oudh. By Act XXI of 1891, the appointment of
Additional Judicial Commissioners for Avadh was provided.
On 1 8th January, 1898 the Rules of the High Court were
reframed, and these rules were more detailed than the first set of
Rules framed in 1866.
Formation of United Provinces
The year 1902 saw the amalgamation of the Provinces of
Agra and Avadh which were together known as United Provinces
of Agra and Avadh which were placed under the charge of a Lieut enan t
Governor. However, in 1920 the United Provinces became a
Governor’s Provinces.
In the year 1905 the question of alteration of the designation
and the seal of the Court prescribed by the Letters Patent came under
consideration. The Attorney General and the Solicitor General of
England who were consulted, were of the opinion that this could
be done by an Act of Governor-General-in-Council, On 16th
August, 1905 deliberations amongst the Judges took place. While
agreeing with the proposal to amend the Letters Patent the Judges
unanimously disagreed that this could be accomplished by any means
short of an Act of Parliament, and out of the reasons advanced by
them one being that Her Majesty could alter the Letters Patent
only within three years as provided by section 17 of the Indian High
Courts Act (24 and 25 Victoria, Ch. 104). It was pointed out that if
the opinion of the Law Officers of the Crown was correct, the
Governor General could do that which Her Majesty could not do.*
The opinion of the learned judges seems to have prevailed for the de-
signation of the High Court was not altered till the power to issue
amending Letters Patent had been conferred by an Act of Parliament.
The problem of arrears in this High Court had emerged even
towards the close of the last century though not to the degree it
exists today, and a sixth Puisne Judge had to be appointed in
1908. Interesting as it may be, in an appeal some time afterwards
not only the validity of this appointment was challenged but even the
constitution of the High Court was attacked, on the ground of the
appointment. The objection was negatived in the judgment in
Emperor vs. Ghure (ILR 36 Alld. 168 AIR 1914 Alld. 85).
New Building
There was shortage of accommodation, and the then existing
building could not accommodate the Benches so much so that the
Judges had at times to sit in Chambers. As long back as the year
1890 even the rooms allotted to the - Advocates and Vakils had to
be resumed and on several days the judges had to sit in chambers
•For reference see the original Minutes of meetings.
**£s§i* 117
due to paucity of court rooms. The shortage must have increased
with the appointment of the sixth Puisne Judge, and, in the year
19 1 1, the foundation of the present building of the High Court was
laid by Sir John Stanley, Chief Justice. The actual construction of
the building, however, could not be commenced till the year 1914
and looking at the enormous size and the architectural majesty
and splendour, it is admirable that the constructions were completed
in less than 2 % years. Due to the difference in the climatic con-
ditions the plan of the building of the High Court had necessarily
to be different from those of the Calcutta or Bombay High Courts.
In those days mechanical devices of cooling a building were not
available and a significant feature of the present High Court building
was the double roofing with the famous Allahabad tiles on the top,
to mitigate the effects of the phenomenal heat of this part of
the country. On 27th November, 1916, the new building was
opened by Lord Chelmsford, the then Viceroy, at an imposing
ceremony. At the function which was held in the morning. Sir
Henry Richards, the Chief Justice, some time also the Vice-Chancellor
of the Allahabad University, delivered his opening address and
referred to the progress of the High Court during the preceding
50 years and to the increase in the size of the Court and the work.
The increase of work in this Court had been almost in a geometrical
proportion and can be judged from the fact that while there were
35 0 subordinate courts in the year 1866 their number had increased
to 1276 in the year 1915.
The Government of India Act of 1915 ( 5 & 6 Geo. V,Ch. 61)
a s amended by the Amending- Act of 1916 ( 6 & 7 Geo. V, Ch. 37)
empowered His Majesty the King of England to make amendments
ln - the Letters Patent from time to time as may be necessary. This
High Court continued under its original name till 1919 when
1 1 8
on nth March, a supplementary Letters Patent was issued whereby
the High Court was named as the High Court of Judicature at
Allahabad, the designation which continues up to the present day.
On 29th October, 1919 Sir Grimwood Mears was sworn in as
Chief Justice. His regime, which lasted for about thirteen years,
the longest that any Chief Justice has so far enjoyed in this High
Court was not devoid of events. On 12th December, 1921 the
Prince of Wales visited the High Court and a reception to welcome
him was held in the High Court by the Bench and Bar. Lord
Reading, the Viceroy of India, visited the High Court on 1st
November, 1923 and a function for welcoming him was held in
the High Court and was attended by the judges and lawyers of
this court and other distinguished persons.
Chief Court of Avadh
As already mentioned by U. P. Act 4 of 1925 the Chief Court
wa sestablished in Avadh, consisting of a Chief Judge and four or
more Judges, to be appointed by the Governor General. It was
declared as the highest court of civil and criminal appeals and revi-
sions. Mr. Justice Stuart a Judge of the Allahabad High Court
was appointed the first Chief Judge of the Chief Court of Avadh.
The Letters Patent of the High Court contained a provision that
in case of difference of opinion amongst the Judges, when neither
opinion was in the majority the view of the senior Judge
was to prevail, while on the other hand section 98 of the
Code of Civil Procedure contained a provision that where a Bench
consisting of two Judges while hearing an appeal was faced with a
difference of opinion between the Judges, on a point of law, they
had to state the point and refer the matter and the appeal was then
to be heard on that point only by one or more other Judges, in
accordance with whose opinion the appeal was to be disposed of.
In the Bombay High Court a curious situation had arisen in
a Letters Patent appeal against the decision of a Single Judge. On
a difference of opinion between two Judges constituting a
Bench the matter was referred to two other Judges, against
whose decision an appeal was filed before the Privy Council. It
was contended by the appellant before the judicial Committee that
the procedure adopted by the High Court in referring the matter
to two other Judges was ultra vires and vitiated their decree, as
the provisions contained in section 98, C. P. C. did not control the
provision in the Letters Patent with regard to the prevalance of
the opinion of the Senior Judge. The contention prevailed and
relying upon an Allahabad decision reported in ILR 26 Alld. 10
the Privy Council advised His Majesty to set aside the decree passed
by the Bombay High Court and the case was remanded to the
High Court for decision according to law.*
In accordance with the Report of the Civil Justice Com-
mittee, the Govt, of India, in 1925, suggested that section 98,
C. P. C. should be amended so as to include Second Appeals. The
committee did not propose any alteration of the Letters Patent.
The opinion of the learned Judges of this court was sought on
the question of amending either sec. 98 or the Letters Patent to bring
them in conformity with each other.
The opinion of the majority of the judges was, firstly that there
should be a uniform provision for Letters Patent appeals and appeals
governed by the Code of Civil Procedure and further that Judges
should have power to refer question both of fact as of law.
*48 Indian Appeals 181.
Secondly the rule contained in the Letters Patent, to the effect that
if Judges differed amongst themselves the decree of the trial Court
would prevail, should be deleted as it might lead to a travesty
of justice e.g. in some cases the Judges may be agreeing to modify
the decree, but there might be a difference as to the nature of the
modification. The recommendations of the Judges were accepted
and on 9- 12-192 7 the Letters Patent were amended. Clauses 10
and 27 were deleted and replaced by new clauses. As a result of
the amendments Special Appeals from judgments in Second Appeals
were permissible provided leave was granted for such appeals,
though previously appeals could be filed without leave. Further
Special appeals, incase of difference of opinion amongst the Judges
divided equally, and where the differing Judges did not constitute
a majority of the strength of the High Court, were abolished and,
last but not the least, the original rule of prevalence of the opinion
of the Senior Judge was abolished and in the new rule a reference
to a larger Bench was provided for, though the differing Judges
were also to be included in the latter Bench. Time had shown
the foresight of Justice Mahmood who had correctly predicted the
anomaly of clause 27 of the Letters Patent. It is gratifying that
posterity had accepted his valuable suggestion.
Upon the retirement of Sir Grimwood Mears in 193 2 Sir Shah
Mohd. Sulaiman took over as Chief Justice. Besides his undoub-
ted brilliance, he had the distinction of being the first Indian to be
appointed as Chief Justice of this Court and probably the second in
India the first being Sir Shadi Lai in Lahore High Court. Sir Shah
Sulaiman later adorned the Bench of the Federal Court and enjoyed
the distinction of belonging to the first batch of judges of that
court.
The Government of India Act, 1935 vested all the High Courts
■with the power of superintendence over the subordinate courts and
Tribunals, within their territorial jurisdiction. This power is now
embodied in Art. 227 of the Constitution.
On the 24th July, 1935 His Excellency the Viceroy, Lord
Willingdon, visited the High Court and a welcome address, in his
honour, was presented to him in the Chief Justice’s Court.
In 1937 on the elevation of Sir Shah Mohd. Sulaiman to the
Federal Court, Sir John Gibb Thom became the Chief Justice.
He was a great champion of the independence of Judiciary. During
his time the Chief Secretary made the mistake of sending a Circular
letter to the various Sessions Judges in U. P. commenting upon the
adverse effect on the administration by the frequent grant of bails.
Being in a fix, a Sessions Judge forwarded the letter to the High
Court for advice. The matter was taken up by Chief Justice
Thom who made a very strong objection asking the Government
to withdraw the letter and send an apology from the Chief Sec-
retary within a week failing which he would be liable for contempt
of Court. The Chief Secretary immediately withdrew the letter and
tendered an apology.
Amalgamation of Avadh Chief Court with the High Court
After the attainment of independence by India, the historical
anomaly of existence of the two highest courts of appeal within
the same Province, the territories known as Agra and Avadh having
come under one local Government as far back as the year 1902,
was keenly felt. By the U. P. High Court Amalgamation Order,
1948, the Chief Court of Avadh was amalgamated with the High
Court of Allahabad and the new High Court was conferred the
jurisdiction of both the Courts so amalgamated. The Chief Justice
of the Allahabad High Court, Sri B. Malik was appointed the Chief
Justice of the new High Court and the Chief Judge and the Judges
of the Avadh Court were appointed Puisne Judges of the new
court. Shri Ghulam Husain, who was later elevated to the
Supreme Court, was the Chief Judge of the Avadh Court at the
time of the amalgamation. By the Amalgamation Order the jurisdi-
ction of the Court under the Letters Patent and that of the Chief
Court under the Avadh Courts Act was preserved. The seal of the
new Court was to be provided by the Chief Justice, but the laws in
force immediately before with respect to the forms of writs and
other processes used by the High Court at Allahabad, with necessary
modifications were adopted by the new High Court. By section 14
of the order it was provided that the new High Court and the
Judges were to sit at Allahabad or at such other places as the Chief
Justice with the approval of the Governor might direct, provided
however, that two Judges at least were to sit at Lucknow, unless
the Governor with the concurrence of the Chief Justice, was to
direct otherwise. The power of directing any case or class of cases
arising in the territory of Avadh to be heard at Allahabad was
reserved to the Chief Justice. There was no corresponding provision
for transferring cases to Lucknow Bench.
On the 26th July, 1948 an impressive ceremony took place at
Allahabad to commemorate the amalgamation of the two courts, at
which the Governor, Smt. Sarojini Naidu, the Chief Minister Shri
G. B. Pant, Hon’ble Lai Bahadur Shastri, the beloved Late Prime
Minister, the Judges and the ex- Judges of our High Court were
present. Dr. Sachidanand Sinha, President of the Constituent
Assembly was prevented by his ill-health from attending the
ceremony but the glowing warmth of his feelings is visible in his
message running as follows :
“But as seniormost Advocate enrolled in 1896 , 1 may be per-
mitted to offer you and to your Hon’ble colleagues my
heartiest felicitation on this historic occasion and to convey
my best wishes for maintaining highest judicial traditions.”
Pt. Jawahar Lai Nehru could not forget his association,
paternal and personal with this Court. He had been on the rolls of
this High Court, but the demands of the recently assumed office
of P rim e Ministership of India did not permit his personal presence
on that occasion. In his message while contrasting the tendency
of disintegration growing in certain other States, he observed :
“Contrary to this general trend we have a process of unifica-
tion in the United Provinces where the High Court at
Allahabad and the Chief Court at Lucknow are being
amalgamated to form a single powerful High Court in the
whole Province . . .
Though in Allahabad, Sir Tej Bahadur Sapru, on account of his
continued illness, was incapacitated from adding grace to the function.
After the messages sent by various distinguished and eminent
personages had been read out by the Registrar, the Advocate
General, Shri P. L. Banerji, who was the doyen of the Allahabad
Bar, nay a prize of the entire legal profession, delivered a brilliant
speech which was followed by the address of the Chief Justice. In
the afternoon of 26th July, the first meeting of the Judges of the
amalgamated High Court took place .
Amalgamation of Rampur, Banaras and Tehri-Garhwal
In July, 1949 States Merger (Governors’ Provinces) Order,
1949 was passed which was, in November, amended by the States
Merger (United Provinces) Order, 1949, whereby the powers of the
Government of some Indian States specified in the Schedule, which
had vested in the Dominion Government were transferred to the
adjoining Governors’ Provinces. In Schedule VII, Rampur, Banaras
and Tehri-Garhwal were the States specified, and by sec. 3 the said
States were to be administered in all respects as if they formed
part of the absorbing province.
As a necessary corollary, the Merged States Laws Act was passed
by the Governor General in Council. By this Act various enactments
specified in the schedule were made applicable to the merged States.
As for the local laws the U. P. Merged States (Application of
Laws) Act, 1950 was passed on the 16th March, 1950. This Act
replaced the U. P. Merged States (Application of Laws) Ordinance,
1950 whereby certain laws had been extended to the merged States
of Banaras, Rampur and Tehri-Garhwal, administered as part of Uttar
Pradesh. The jurisdiction of the Allahabad High Court was ex-
tended to the merged State of Rampur by sec. 12 of the States
Merger Order. The Ijlas-i-Humayun, which was the Privy Council
presided over by the Ruler, the High Court of Rampur and the
Civil Courts were abolished and all proceedings pending in the
Ijlas-i-Humayun stood transfered to the Allahabad High Court,
while the proceedings pending before the High Court of Rampur
stood transferred to the District Judge, Rampur.
In the case of Banaras the Governor, on the 30th November,
1949 under the authority delegated to him by the Central Govern-
ment issued the Banaras State (Abolition of Privy Council and
Chief Court) Order, 1949 whereby these courts in the Banaras State
were abolished and all the appeals and other proceedings pending
before these courts stood transferred to the Allahabad High Court.
The subordinate courts were substituted by other district courts
by means of a separate order.
Similarly the jurisdiction of Allahabad High Court was ex-
tended to Tehri-Garhwal by the Tehri-Garhwal (Abolition of Huzur’s
Court and High Court) Order, 1949 and the pending appeals were
transferred to the Allahabad High Court.
The Republic Day Celebrations on the 26th January, 1950
could not be held on a scale which justified the occasion as the
Judges of this Court had gone to Lucknow to take oath. However,
the first anniversary of the Republic of India was celebrated on a
very grand scale on 26th January, 1951* Chief Justice Sirnmons of
the Supreme Court of Nebraska, U. S. A., visited the High Court in
August, 1953.
The work in this High Court was increasing beyond propor-
tions and the question of appointment of Additional Judges was
pressing not only the High Court but the Government of the State.
The building which was originally built for 7 Judges could hardly
serve the need of a High Court the maximum strength whereof was
prescribed by the Constitution to consist of 24 Judges. The san-
ctioned strength in the year 1954 was of 22 Judges and times were
not far ahead when both the maximum strength and the sanctioned
strength of the High Court was to be increased, as was in fact
done. It was in the fitness of things that the High Court building
should have been extended. The growth in numbers was
not confined to the Bench. The High Court Bar continued to
swell by new entrants. The few chambers which were allotted to
the lawyers and the small halls given to the three Associations of
the Bar were hardly able to cope with this increase.
As a result of the co-operation of the Chief Minister,
Sri Govind Ballabh Pant, extensions were made in the High
Court building with the result that the High Court could be
proud of having 17 court rooms including the magnificent
new Centre Court known as the Chief Justice’s Court and 25
Chambers for Judges. Besides a new Judges’ Library and a meet-
ing hall which is situate by the side of the Chief Justice’s Chamber,
for deliberations amongst the Judges was also provided for.
The opening ceremony of the new Wing of the High Court
was performed by Dr. Rajendra Prasad, President of India and in
the Chief Justice’s Court, a welcome address on behalf of the Judges
was presented by the Chief Justice. Then followed the welcome
speech on behalf of the Bar delivered by Sri K. L. Misra, Advocate
General, who after paying rich encomiums to the President pointed
out that not only was the Chief Justice’s court room largest in Asia,
but the State over which the High Court administered justice was
the largest State in the country.
Reminded of the past when he himself used to frequent courts
Dr. Rajendra Prasad observed in his speech that it was a matter of
deep satisfaction to him to be in the midst of the lawyers and the
Judges and to see some faces which were familiar to him.
On the retirement of Shri B.Malik, Shri O. H. Mootham, now Sir
O. H. Mootham was appointed as Chief Justice. He was the last Eng-
lishman to be the Chief Justice of this High Court. His association
with this court has not ceased even after his retirement and he
still continues to send New Year greetings to the High Court and
the Bar. His genial temperament and judicial outlook will long be
remembered by all who came in contact with him. He, it must be
said, was very anxious to reduce the arrears in this court and
adopted various measures for the same.
An episode of some interest might be narrated at this juncture.
The oath taking ceremony of a Chief Justice had been invariably held
at Allahabad. Sir Grimwood Mears and other Chief Justices had
been administered oath in open court at Allahabad andin deed the
Governor had himself come to Allahabad for administering oath to
Sir S. M. Sulaiman and Sir Iqbal Ahmad and again to Chief
Justice B. Malik. Upon the amalgamation and re-orientation of this
Court in 1948 oath was given at Allahabad by Smt. Sarojini Naidu,
the Governor. A departure was made by the Governor, when
Chief Justic Mootham had to be sworn and it was proposed to hold
the ceremony at Government House at Lucknow. The Bar of
this court made a representation against this proposal to the
President of India. The Bar Library even passed a resolution on
January 10, 1955 protesting against this proposal and prohibiting its
office bearers from joining the function at Lucknow. The views
of the Bar, did not go unheeded but since the ceremony had already
been fixed it was held at Lucknow. However, when the occasion
recurred at the appointment of Mr. Justice Desai in February,
1961 as the Chief Justice, the Governor authorised Mr. Justice
V. Bhargava who was the seniormost Puisne Judge to administer
oath to him.
In December, 1956 the Law Commission of India chose
Allahabad as the venue for its sitting. The Commission had co-opted
two eminent lawyers from this State, namely Shri Kirpa Narain of
Agra and Shri Jagdish Sarup of Allahabad. Various Judges and
lawyers of this Court were interviewed and after deliberations the
Commission submitted a detailed report suggesting reforms in the
sphere of law from the University up to the Central Government!
Lord Denning, in his tour of India included a visit to our High
Court. A warm welcome was given to him by Chief Justice
Mootbam and the Judges as well as the Bar of this Court.
In February 1961 Mr. Justice Desai was appointed as ihe first
I. C. S. Chief Justice of this Court. In his time the largest number
of appointments to the Bench, numbering twenty-five were made. On
his appointment as Chief Justice, Shri K. L. Misra, Advocate
General in his welcome address on behalf of the Bar, said :
“ My Lord, I cannot help remarking on this occasion that
in the long history of this court you are the first member of
Indian Civil Service to become Chief Justice. The Indian
Civil Service when it was the steel frame of a foreign rule
carried with it both glory and the stigma of that foreign
rule. But because of the large number of Judicial appoint-
ments even in the highest courts, the Indian Civil Service in
the days of its departure is becoming the steel frame of the
administration of justice in India. ”
The Rules of this Court had preserved the provision of the
Letters Patent permitting a Special Appeal against the decision of a
single judge hearing a Second Appeal provided he certified it as a fit
case for further appeal. It was a beneficent provision and had
seldom been misused. Litigation in the Supreme Court being
far too expensive for the average citizen, the necessity of this remedy
was self-evident. In 1962 by the U. P. High Court (Abolition of
Letters Patent Appeals) Act XIV of 1962 such Special Appeals were
abolished and the prohibition extended even to those Second Appeals
which were pending in the Single Judge jurisdiction at the time of
the enforcement of the Act. However, inconvenienced one may
feel, the wisdom of our Legislature is, I suppose, not open to doubt.
The historic controversy that had arisen over the jurisdiction
of the High Court to examine the validity of punishments imposed
by the Legislature for its contempt, deserved a detailed mention.
The necessity has been diminished by the opinion of the Supreme
Court, given under Art. 143 of the Constitution. The controversy
is also too recent for inclusion in a historical introspection.
Every now and then we find a wave of concern in the minds of
129
people about the arrears la this court. Perhaps it -would not be
out of place to remind them of the size of this State with the highest
population in India, of the number of big cities, the comparative
uneven distribution of wealth, the increasing activities of the State
and their continuous impact on the life of the citizen and the
consequent volume of work which finds entry into the High Court
every year. Without encumbering this article with statistics, I might
mention that as many as twenty-two Courts ate now working at
Allahabad and another six at Lucknow. Day in and day out, the
Judges toil, with the co-operation of Bar to bring down the graph.
The progress made, to say the least, is not disappointing.
Upon the retirment of Chief Justice Desai in February 1966,
Sri Justice V. Bhargava succedeed him. On his elevation to the
Bench of the Supreme Court in August 1966, however, he parted
company with us.
At the close of the hundred years of the High Court Mr.
Justice Nasirullah Beg was sworn in as Chief Justice. The close of
a century is seldom so closely followed by the emergence of new
ideologies. The concept of a joint partnership with equal rights
and responsibilities, between the Bench and Bar, though professed
often times, was never before ushered into the domain of reality.
Happily enough, the disappointment of yesterday is now the hope
of tomorrow and nothing better justifies our optimism than the
assurance of Chief Justice Beg conveyed in the following words :
“I shall make an attempt to convert my cherished dream
of administration of justice as being a joint partnership
between the Bench and the Bar into a living reality
I also propose to constitute an Inspection Committee
consisting jointly of Judges and lawyers and the Registrar.
This Committee shall be entrusted with the task of
supervision of the staff of this Court. Lawyers being in
cons- tant touch with the members of the staff would be
in the best position to point out their deficiencies and
suggest remedies for the same.” *
Let us hope that something sublime would emerge from
the combination of the two limbs; something that would make both,
the worthy human agents of the Supreme Dispenser of Justice. Our
destination is the same and so is our bridge to reach it.
•Speech delivered by the Chief Justice on the 24th of September, 1966 at th« Oath
taking ceremony.
131
Photograph taki.n on
Photograph taken on the occasion of foundation laying ceremony of the present High Court Building
by Sir John Stanley, Chief Justice, in 1911
Photograph taken at the time of amalgamation of the Chief Court
of Oudh with the High Court, Allahabad
Photograph taken on the retirement of Hon'ble Mr. M. C. Desai, and on tiie
Hon'ble Mr. V. Bhargava, as Chief Justice, Hioii Court, Aeeaiiai
The ‘Judges in the English Department’
Subsequently known as
‘Judges in the Administrative Department’
By
SRI K. P. MATHUR
Retired Judge > High Court of Judicature at Allahabad
gngHE Judge, inchargc of the executive and administrative
business of the High Court and the courts subordinate
thereto is designated as the ‘Judge in the Administrative Depart
ment.’ This designation was adopted after the amalgamation of the
Chief Court of Avadh with the High Court of Allahabad in
1948. Before that, such a Judge was known as the ‘Judge in the
English Department’. Before amalgamation, the meeting, at which
the executive and administrative business of the Court was transacted,
was known as the English Meeting, and all the Judges present
in Court on the day of the meeting used to attend it. The term
‘English Meeting’ appears to have been adopted for the reason
133 cgg&g
that the executive business of the Court mainly consisted of
dealing with English correspondence and issuing of orders and
circulars in English for the direction of subordinate courts.
After amalgamation it was considered that it would not be
convenient for the Judges at Lucknow to attend such meetings.
Another reason, I think, was that the number of Judges had greatly
increased. Consequently the Chief Justice constituted a Committee
of seven Judges to transact the executive and administrative
business of the Court and designated it as the Administrative
Committee. Whenever a meeting of all the Judges is called, it
is known as the Judges’ Meeting.
Originally, when the number of Judges of the Court was
small, no one Judge was incharge of the executive and administrative
business of the Court and the papers relating to such business used
to be circulated amongst all the Judges. It was in 1880 that
Mr. Justice Robert Spankie made a suggestion that one Judge
may be placed inchargc of the executive and administrative business
of the Court. In his note, dated 22nd January, 1880 he pointed
out that ‘a number of letters and applications were circulated daily
amongst all the Judges regarding which even one member of the
Court could pass satisfactory orders and thereby dispose of them
without injury to the public service or prejudice to the Court’. He
suggested that the English correspondence before circulation to all the
Judges should be laid before an English Business Committee of the
Court and the Committee might dispose of the ordinary matters with-
out reference to other members of the Court and should circulate only
those matters on which opinion of all the Judges appeared to be
desirable. It was further suggested that the Committee might consist
of two Judges. This note was circulated to all the Judges of the
Court for opinion. Mr. Justice Douglas Straight gave the opinion. that
134 ^
there was much force in the suggestion made in the note and desired
the matter to be discussed at an English Meeting called for the
purpose. Other Judges also agreed with the opinion of Mr. Justice
Douglas Straight. Sir Robert Stuart, Chief Justice, agreed that
the question may be discussed at an English Meeting but added
that the proposed arrangement might not work well.
In the High Court office the earliest recorded minutes of
an English Meeting that are available are of the meeting that was held
on 6th May, 1886 (Minutes of the English Meeting, Vol. I, p.i).
Consequently it could not be said with certainty whether any
meeting was called for purposes of considering Mr. Justice Spankie’s
note and if so, when and what decisions were taken thereon.
A note, dated 30th August, 18 87 of Mr. Thomson, the then
Registrar, however, throws some light on the subject. Mr.
Thomson mentions in his note that at the time when he
came to the Court (he was appointed Registrar on 2nd June, 1884)
Mr. Justice Oldfield was incharge of the English business. At
another place in the same note Mr. Thomson says that c there
does not seem to have been any regular resolution recorded at the
time when the present system of disposing of English business
was in 1880 substituted for the former practice in which all papers
were circulated to all the Judges.’ It is thus clear that it was
in 1880 that the system of placing one Judge incharge of the execu-
tive and administrative business of the Court (which was at that
time known as English business) was introduced. Although there
is no formal resolution to that effect, it can be safely assumed
that a meeting must have been called for the purpose of discussing
Mr. Justice Spankie’s note, and there it was decided to give the
proposal of Mr. Justice Spankic a trial without formally adopting
it in the form of a resolution. This position is further confirmed by
135
minute, dated nth August, 1887 recorded by Mr. Justice
Mahmood wherein he observed that ‘the view expressed by
Mr. Justice Spankie in his minute of 22nd January, 1880
suggesting a co mm ittee of two Judges has never been the subject
of consideration by the whole Court, and there is, therefore, no
delegation of authority by the Court to any one or. more of its
members for disposal of what is technically called English business
and there is, therefore, no specification of the powers of one
of the members of the Court to dispose of such business on behalf
of the whole Court without consulting the other members of
the Court/
These notes make it clear that the first Judge in the
English Department was Mr. Justice Oldfield. He was placed
incharge of executive and administrative business of the Court in
February or March, 1880. No formal resolution was recorded at a
meeting of the Judges (English Meeting) with regard to his
appointment. Probably he was placed incharge of the administrative
business by way of giving trial to the proposal contained in
Mr. Justice Spankie’s note.
Mr. Justice Oldfield retired in 1887 and after that Mr.
Justice Tyrell was made incharge of the English business of the
Court as will appear from an entry, dated 27th October, 1887 over
the signatures of Sir Robert Stuart (Chief Justice), Mr. Justice
Douglas Straight and Mr. Justice Brodhurst. That entry is to the
following effect :
‘ We shall be obliged if Mr. Justice Tyrell will, so far as we
are concerned, conduct the English business of the High
Court according to the practice now and for some years past
observed. By the English business we mean all correspondence
in English language addressed to the Registrar and all returns
136
and statements not being returns to precepts or judicial orders,
or explanations called for by particular Judges or Benches— or
references under any Statute or Act or correspondence in which
the opinions of all the Judges are specifically required or
periodical Sessions Statements or other work assigned to any
particular Judge.’
In this entry an attempt was also made to define the term
‘ English business of the Court ’. We thus see that after Mr. Justice
Oldfield the Judge who was placed incharge of the English business
of the Court was Mr. Justice Tyrell.
After the above entry in the minutes of 27th October, 1887
Mr. Justice Mahmood wrote out another lengthy minute, dated
28th November, 1887 pointing out that the discussion at the
English Meeting of 27th October, 1887 resulting in a resolution
whereby the learned Chief Justice, Mr. Justice Straight and Mr
Justice Brodhurst had concurred in delegating their power as to what
was called English business to Mr. Justice Tyrell and who was under-
stood to have accepted such delegated authority, was not discussed or
framed as a Rule of Court but was simply an expression of personal
desire and of personal delegation of authority on the part of the Chief
Justice, Mr. Justice Straight and Mr. Justice Brodhurst. Mr.
Justice Mahmood emphasised that the resolution was, therefore, not
binding on him. Upon this, the Chief Justice ordered that the minute
of Mr. Justice Mahmood was to be considered at the next English
Meeting to be held on 3rd December, 1887. The Chief Justice also
wrote out a note, dated 2nd December, 1887, in which he pointed out
that it was his desire that there should be no cause for friction and
the work of the Court should be done expeditiously and without
wasting judicial strength and time upon other matters which, in other
offices, are disposed of by subordinates. He further ordered in his
note that until Mr. Justice Mahmood otherwise directed the
Registrar in writing, all the English business of the Court was also
to be submitted to him for consideration and orders, and that
Mr. Justice Mahmood would take care that the transaction of the
English business might not be delayed or the correspondence be
allowed to fall into arrears. It was further mentioned in the note
that all other Judges have agreed that the English business would be
conducted in accordance with the practice of the Court and in accord-
ance with the request contained in the entry of 27th October, 1887
in the minutes over the signatures of the Chief Justice, Mr. Justice
Straight and Mr. Justice Brodhurst. At the meeting which was held
on 3rd December, 1887 the minute of Mr. Justice Mahmood and
the note of the Chief Justice were considered. Except Mr. Justice
Mahmood, all other Judges fully approved and accepted the note of
the Chief Justice. Mr. Justice Mahmood adhered to his own views
that the English business should be referred to all the Judges. He,
however, accepted the arrangement ordered by the Chief Justice in
his note.
We thus see that from 27th October, 1887 Mr. Justice Tyrell
was incharge of the English business of the Court but such business
was also referred to Mr. Justice Mahmood for opinion and orders.
The High Court was established by the Letters Patent of
1866, The earliest published Rules of Court are the ‘Circular Orders
and Circular Letters of the High Court of Judicature, North-Western
Provinces, 1866—75/ The next publication of these Rules is of the
year 1880. Thereafter, Rules of Court were published in 1882, 1889,
1894 and 1898. The last revision of the Rules was made in 1952.
In the Rules, which were published uptil 1882, there is no mention of
the Judge in the English Department or of the English business of
the Court. One of the objections in the minute of Mr, Justice
138
Mahmood was that the resolution of 27th October, 1887 delegating
the power to Mr. Justice Tyrell to conduct the English business of
the Court was neither discussed nor framed as a Rule of the Court.
For the first time, the provision for the appointment of a Judge in
the English Department and the manner in which such appointment
was to be made was made in the Rules of Court of 1889. Rules 258
to 271 contain the provisions relating to the executive and
administrative business of the Court, the Judge in the English
Department and the English Meeting.
The first English Meeting that was held after the promulga-
tion of these Rules was on 3rd January, 1890. At that meeting,
Mr. Justice Tyrell was elected to act as Judge in the English Depart-
ment under rule 259. Mr. Justice Tyrell retired in November,
1894. But there is a resolution dated 2nd May, 1891 on page 66 of
Yol. II of the minutes of the English Meeting, appointing Mr.
Justice Knox to be the Judge in the English Department. We thus
see that Mr. Justice Knox assumed charge of the English Department
in May, 1891. Although Mr. Justice Knox retired on 17th January,
1921, it was in the year 1920 that he expressed a strong desire to be
relieved of the work of the Judge in the English Department.
Consequently, by a resolution passed at the English Meeting of
16th July, 1920, it was unanimously resolved that the resignation of
Mr. Justice Knox be accepted and that Mr. Justice W. Tudball be
appointed in his stead (vide minutes of the English Meeting,
page 305, Vol. V). Thus Mr. Justice Tudball assumed charge
of the English Department from 16th July, 1920. He resigned the
post of the Judge in the English Department on 5th March, 1921 and
on the same date, by a resolution passed at the English Meeting,
Mr. Justice Lindsay was unanimously elected in his stead (vide
minutes of the English Meeting, Vol. V, p. 339).
No paper is available to indicate the date uptil which Mr.
Justice Lindsay worked as Judge in the English Department.
There is, however, a resolution of the English Meeting of 21st
December, 1922, which shows that Mr. Justice Daniels was elected as
successor to Mr. Justice Stuart as Judge in the English Department
during Mr. Justice Stuart’s absence at Ambala to settle the Patiala-
Nabha dispute. This shows that Mr. Justice Stuart was working
as Judge in the English Department since before December, 1922.
He was appointed a permanent Judge of the Court in October, 1922.
We can, therefore, take it that he was made a Judge in the English
Department about November, 1922. Thus, the period of Mr. Justice
Lindsay as Judge in the English Department would be from March,
1921 to November, 1922.
Mr. Justice Stuart was Judge in the English Department from
November, 1922 to 21st December, 1922. Mr. Justice Daniels
was elected as Judge in the English Department on 21st Decem-
ber, 1922. He worked in that capacity till June, 1923' when
Mr. Justice Stuart returned from special duty. Thus, from July, 1923
Mr. Justice Stuart again became Judge in the English Department
and remained so till 19th October, 1925 (vide marginal note in the
personal file of Mr. Justice Daniels). From 19th October, 1925 Mr.
Justice Daniels again took charge of the work of the Judge in the
English Department and continued in that capacity up to 18th
October, 1926 when he proceeded on long leave. On 18th October,
1926 Mr. Justice Dalai was appointed Judge in the English Depart-
ment as a result of the resolution of the En gli sh Meeting. Mr.
Justice Dalai occupied that post till April, 1930 when he resigned.
By a resolution, dated 4th April, 1930, Mr. Justice Kendall was
appointed Judge in the English Department and he continued upto
9th May, 1935. On 10th May, 1936 he died as a result of car
140
accident. Then, by a resolution dated 20th July, 1935, Mr. Justice
Bennel -was elected to act as Judge in the English Department.
He worked in that capacity upto July, 1940 when he proceeded on
leave preparatory to retirement. After that, Mr. Justice Allsop was
appointed Judge in the English Department from July, 1940 and
he continued to hold that post upto January 1, 1947.
By an unanimous resolution dated 20th January, 1947,
Mr. Justice B. Malik was appointed to act as Judge in the
English Department. He continued to work as such till 16th
December, 1947. By a resolution dated 16th December, 1947, Mr.
Justice Raghubar Dayal was unanimously elected to act as Judge
in the English Department. Early in the year 1949, he expressed his
unwillingness to continue to work in that capacity. Thereupon
Mr. Justice Wanchoo was appointed as Judge in the Administrative
Department from February 26, 1949. He worked in that capacity
until 23rd December, 1950 when he was translated as Chief Justice
of the Rajasthan High Court. By a resolution, dated 23rd Decem-
ber, 1950 at a Judges' Meeting, it was unanimously resolved that
Mr. Justice Harish Chandra be appointed as Administrative Judge.
He continued to work as such till his retirement on September 14,
1954. By a resolution, dated September 14, 1954, Mr. Justice M. C,
Desai was unanimously elected as Administrative Judge, who con-
tinued to work in that capacity till February, 1958. Thereafter
Mr. Justice Vashishtha Bhargava was elected to act as Judge in the
Administrative Department and he continued to work assuch till
November 12, 1964 when, by a resolution of that date, Mr. Justice
Jagdish Sahai was unanimously elected as Administrative Judge.
The list of 18 Judges who have been incharge of the Executive
and Administrative business of the Court is as follows :
Hon’ble Sir Richard Charles Oldfield, C. S., from March,
1880 to October, 1887.
Hon’ble Mr. Justice William Tyrell, C. S., from October,
1887 to May, 1891.
Hon’ble Sir George Edward Knox, 1. s. o., 1. c. s., from
May, 1891 to July, 1920.
Hon’ble Sir William Tudball, 1. c. s., from July, 1920
to March, 1921.
Mr. Justice Benjamin Lindsay from March, 1921 to
N o vember, 1922.
Hon’ble Sir Louis Stuart, c. 1. e., i. c. s., from
November, 1922 to December, 1922.
Hon’ble Sir Sidney Reginald Daniels, 1. c. s., from
December, 1922 to June, 1923.
Hon’ble Sir Louis Stuart, c. 1. e., i. c. s., (again) from
July, 1923 to October, 1924.
Hon’ble Sir Sidney Reginald Daniels, 1. c. s., (again)
from October, 1924 to October, 1926.
Hon’ble Sir Barjor Jamshedjee Dalai, 1. c. s., from
October, 1926 to April, 1930.
Hon’ble Sir Charles Henry Bay ley Kendall, 1. c. s.,
from April, 1930 to May, 1935.
Hon’ble Sir Edward Rennet from July, 1935 to July, 1940.
Hon’ble Sir James Joseph Whittlesea Allsop, 1. c. s.,
from July, 1940 to January, 1947.
Mr. Justice Bidhubhushan Malik from January, 1947 to
December, 1947.
Mr. Justice Raghubar Dayal, 1. c.. s., from December,
1947 to February, 1949.
Mr. Justice Kailash Nath Wanchoo, i. c. s,, from
February, 1949 to December, 1950.
Mr. Justice Harish Chandra, 1. c. s., from December,
1950 to September, 1954.
Mr, Justice Manulal Chunilal Desai, 1. c. s,, from
September, 1954 to February, 1958.
Mr. Justice Yashishtha Bhargava, 1, c. s., from February,.
1958 to November, 1964.
Mr. Justice Jagdish Sahai from November, 1964.
The History and Role of Subordinate Civil
Judiciary in Uttar Pradesh
By
SRI BIND BASINI PRASAD
Retired Judge, High Court , Allahabad
B Subordinate Civil Judiciary in
this State at present
consists of—
1. District and Sessions Judges
... *44‘
2. Civil and Sessions Judges
40 1
3. Civil Judges
65 1
4. Munsifs
205 1
5. Nyaya Panchayats
... 8 , 662 3
Prior
drawn from the Indian Civil Service. A limited few posts, seven
out of thirty-seven, were gradually thrown open to the Prov-
incial Judicial Service. A degree of law was not an essential
qualification for the Indian Civil Service ; but for the Provincial
Judicial Service, it was an essential qualification. On a very
few occasions appointment of District Judges was made directly
from the Bar. The last such appointment was of Shri Tej Narain
♦This number includes 39 District and Sessions Judges in 39 Judgeships, the
Registrar, High Court, Allahabad, 1 Judicial Secretary and Legal Remembrancer to
Government, Deputy Legal Remembrancer and a posts for Deputation Reserve.
Wide Civil List, Part I of U. P., corrected up to July 1, 1964.
Wide p. 51 of the Report on the Administration of Justice in U. P. for jg 6 g.
Mulla in about the year 1920. After the Independence, the Indian
Civil Service was replaced by the Indian Administrative Service.
Recruitment to the cadre of District Judges from the Administrative
Service thereupon stopped and for a few years all the vacancies in
District Judgeships were filled from the cadre of Provincial Judicial
Service. In April, 1953, the Uttar Pradesh Higher Judicial Service
Rules were promulgated. This Service was to consist of District and
Sessions Judges, Civil and Sessions Judges. The strength of the
Service and each class of posts therein were to be determined by the
Government from time to time in consultation with the High
Court. The scale of pay to the members of the Service were :
(i) For Civil and Sessions Judges : Rs.600—5 0—800— 50—
1,200 per mensem with an efficiency bar at Rs.8oo.
(ii) For District and Sessions Judges : Rs.8oo— 50— 1,000—
75—1,750—50—1,800 per mensem.
Recruitment to the Service are made to the post of Civil and
Sessions Judges by— (i) promotion from the members of the U. P.
Civil Service (Judicial Branch), and (ii) direct recruitment after
consultation with the High Court from—
(a) Barristers, Advocates, Vakils, or Pleaders, of more than
seven years’ standing.
(b) Judicial Officers, viz. those exercising Magisterial and
Revenue powers, who have put in a minimum of seven years’
service as such.
The Supreme Court has now held, in Chandra Mohan vs.
State of U. P., reported in 1966 A. L. J. 778, the Higher Judicial
Service Rules to be unconstitutional. It has thrown a very import-
ant portion of the service out of gear. New Rules for recruitment to
the Higher Judicial Service are bound to be framed and promulgated.
Civil Judges and Munsifs constitute what is called the U. P.
Civil Service (Judicial Branch). The strength of the Service and of
each kind of posts therein is to be determined by the Governor from
time to time. Recruitment is made on the result of a competitive
examination conducted by the U. P. Public Service Commission.
No person is to be recruited, who is more than 27 years or less than
22 years of age on the first day of January next following the date
of announcement of the examination by the Commission for
recruitment to the Service. A candidate must be either a Bar-at-Law
or hold a degree in Law from a University established by Law or
be entitled to practice in the High Court or in the Courts sub-
ordinate thereto. A condition of two years’ practice at the Bar was
deleted in 1958. Initially appointments are made to the post of a
Munsif. Civil Judges are appointed from among the Munsifs by
promotion. The time-scale of pay of the Service now is Rs. 250—25 —
400—30—700—50—850 with efficiency bars at Rs. 490 and Rs. 640.
Although Civil Judges perform far more responsible work than Munsifs,
they have no separate grade, nor are they given any special pay.
The organisation and jurisdiction of the civil courts in this
State is governed by the Bengal, Agra and Assam Civil Courts Act,
XII of 1887. The pecuniary jurisdiction of District Judges
and Civil Judges is unlimited, while that of Munsifs is up to rupees
five thousands only. District Judges have special jurisdiction under
certain Acts and try certain special kinds of suits, e.g. cases under
the Land Acquisition Act or suits relating to public and charitable
trusts. District Judges can hear appeals from the judgments of
Civil Judges in suits up to a particular valuation and revisions
from the decisions of the Court of Small Causes. In certain cases,
appeals from Revenue Courts also lie to the District Judge. All
appeals from Munsifs lie to the District Judge but can be heard also
by Civil Judges when transferred to them by the District Judge.
Nyaya Panchayats were established in this State by the U. P.
Panchayat Raj Act, 1947 (U. P. Act XXVI of 1947); and there ate
*2^. 147 ^
now nearly 9,000 Nyaya Panchayats in the State. In 1962, the number
of suits instituted in the Nyaya Panchayats was 49,164. They have
jurisdiction in Civil, Criminal and Revenue cases, and can try civil
suits (a) for money due on contracts other than a contract in respect
of immovable property, (b) for recovery of movables or for value
thereof, (c) for compensation for wrongfully taking or injuring
movable property, and (<?) for damages caused by cattle trespass . Cases
against the State or Central Government or against public servants, for
acts done in their official capacity, or against minors or lunatics or
for balance due on partnership account or for a share under an
intestacy or a legacy are barred from their jurisdiction. Legal
practitioners cannot appear before them. On an application of any
of the parties, and after notice to the opposite party, the Munsif of
the territorial area may, in a case pending before, or decided by, any
Nyaya Panchayat, withdraw and dispose of the same or transfer it to
another Nyaya Panchayat or pass such order as may be just.
The Sub-divisional Officer, after inviting nominations from
Gram Panchayats concerned and scrutinizing them, forwards the
same to the District Magistrate who, after consulting the advisory
committee concerned, appoints Panches of the Nyaya Panchayat.
Subject to a minimum of ten and maximum of twenty-five, every
Nyaya Panchayat shall have such number of members as may be
prescribed. Every person nominated for membership of the Nyaya
Panchayat must be a member of Gram Panchayat, be able to read and
write Hindi and be at least thirty years of age. On appointment
to the Nyaya Panchayat, he ceases to be a member of the Gram
Panchayat. The Panches so appointed elect a Sarpanch and a
Sahayafe Sarpanch from amongst themselves. For the disposal of cases
the Sarpanch constitutes Benches of five Panches each. The distri-
bution of cases between the Benches are made by allotting cases to
Benches in serial order.
148
The entire original Civil work, except a very few cases, which
may be transferred to the High Court in the exercise of its Extra-
ordinary Original Civil jurisdiction, and first appeals from Munsifs
and Civil Judges and revision applications against the decisions of the
Courts of Small Causes and Nyaya Panchayats, are done by the
Subordinate Civil Judiciary. The institution of original suits in
Civil Courts in 1962 was 71,912. 16,038 regular appeals and 3,880
miscellaneous appeals were instituted during the year. Apart from
this, there was election, insolvency, execution and miscellaneous
work before the courts. This gives a broad idea of the volume of
work done by the Subordinate Civil Courts. It is unnecessary to
quote the figures of each type of work. The annual reports of the
administration of civil justice give them in detail.
Although the separation of the judiciary from the executive
is one of the directive principles of State Policy, according to
Article 50 of the Constitution of India, the separation is complete
only in civil cases, inasmuch as the presiding officers of civil courts
are under the supervision and control of the High Court under
Articles 233 to 236 of the Constitution. Broadly speaking, there are at
present three classes of courts in Uttar Pradesh : (1) Civil, (2) Criminal
and (3) Revenue. The presiding officers of the criminal and revenue
courts are under the supervision and control of the Executive
Government. No notification under Article 237 of the Constitution,
applying the provisions to the Magistracy, has so far been issued.
The Subordinate Civil Judiciary, in Uttar Pradesh, has
enjoyed a high reputation for integrity, independence and efficiency.
It has received tributes of praise from persons, British and Indian,
who were competent to form an opinion. The judiciary received
the compliments of Pandit Jawaharlal Nehru, on his release from jail,
after the historic fight for freedom in 1942. Earl of Selborne,
Lord Chancellor of England, in a speech, delivered in 1883, said
that he had “considerable opportunity of observing ' hc JfT"
“iky. kT & E
its, - *,*. > . i««”' ■* "» »• •*
most favour r & ^ ^ ^ ,, m CTety instance,
f renpectof integrity, of learning, of knowledge, of the soundness
“ d Jtisfectory character of the judgments arrived at, the Indian
Ta unite as good as those of the English Judges . Sit
Lanoeiot Sanderson, in a speech delivered in London in June ^1927
totted to the work of the Subordinate Judges and saM that it
Sbeen a great pleasure to him to heat the remarks which had
SLlTom his colleagues on the Judicial Committee of the Privy
Council in regard to the way in which the Subordinate Judges in India
did their work. He, particularly, emphasised the cate with which the
at wem heard, the learning displayed in the judgment and ported
out that the comments of the Judicfal Committee revealed that
the “best traditions have been maintained in the Courts in India
Aitchison Commission of 1886, in their report spoke of the
“very great aptitude for judicial office”, displayed by Indians,
amJnted to posts in the subordinate judiciary; and Mr. S. P. Sinha
X^ds Lord Sinha), in his evident before the Isligton
Commission, spoke of the “ertremely satistaory work done by
the Munsifc and Subordinate Judges.” ..... ... „
The Subordinate Civil Judiciary has received similar tributes
from persons who were in closer touch with their work. Sir
Henry Richards, the then Chief Justice of the Allahabad High Court,
in his address, at the opening of the High Court Building by
the Viceroy, acknowledged the valuable assistance received fan
the District Courts and “of the thorough and searching inquiry
made by those courts. Chief Justice Grimwood Meats, inaugurating
the fourth session of the U. P. Judicial Officers’ Association,
I5O
1924, acknowledged, on behalf of the High Court, the ability
displayed by the subordinate judiciary and of the “esteem in which
the Judges of the High Court held the members of the subordinate
judiciary”. Chief Justice Sir Shah Muhammad Sulaiman, a few
years later, said that the Provincial Judicial Service can take
pride in the fact that those of its members who came up to the
High Court have proved to be brilliant Judges of great experience,
learning and ability. The Provincial Service has produced eminent
and distinguished Judges who, for years, “adorned the Bench with
lustre, and commanded high respect for their clear thinking,
lucid expression and sound judgment”.
Sir John Gibb Thom, in his inaugural address to the Eleventh
Session of the U. P. Judicial Conference, in 1938, paid a tribute
to the efficiency, diligence and high sense of duty of the members
of the Subordinate Judicial Service. Similar tributes were paid by
two Chief Judges of the Oudh Chief Court in March 1930.
Sir Louis Stuart, on the eve of his retirement, pointed out that
the work done by the Subordinate Judges, in original cases, was
exactly the same as was done by the Judges of the King’s Bench and
Chancery Divisions of the High Court of Justice in England and
spoke of “the rare combination of quick disposal and careful
and thorough hearing, given to cases before the Subordinate Judges”.
I111933, at the Eighth Session of the U. P. Judicial Officers Association,
Sir Saiyed Wazir Hasan, spoke of “independence of judgment,
purity of conduct and high sense of duty in dispensation of justice
not only between man and man but also between State and its
subjects, of the Subordinate Judiciary”. In 1946, Hon’ble Mr. Justice
Ghulam Hasan, pointed out not only to the efficiency, integrity and
devotion to duty, displayed by the members of the service, but
also that the service had produced men of whom any judicial
system would be proud and that they had left an indelible impress on
151 <*££?
the annals of judicial history by their judgments marked, invariably,
by legal acumen, industry and ability of a high order.
Mr. Chintamani, while moving a resolution in the U. P.
Legislative Council, in 1919, spoke of “conscientious thoroughness
with which the Provincial Judicial Officers performed their duties”
and who, by “dint of ardous and good work have raised the whole
tone of the judicial administration”. Sir Tej Bahadur Sapru, as
member of the Executive Council of Viceroy, in the Civil Justice
Committee Report, said about the Subordinate Judges having reached
a high standard of efficiency, though he pointed out that they
were so overworked that they were not able to spare time to keep
abreast of the growing literature of law.
The Subordinate Judicial Service in Uttar Pradesh has not
only produced eminent Judges of the High Court, like Syed Mahmud,
P. C. Banerji, Lai Gopal Mukerji and many others, who have shed
lustre, by their judgments, in the pages of the law reports, but also
persons, who, when they chose to go in other walks of life, achieved
unique distinction. Sir Syed Ahmed was, when he was, in his
earlier life, a Subordinate Judge of the State, the centre of educational
activities and founded the M. A. O. College at Aligarh which later
on blossomed forth into the Muslim University. His worthy son,
Syed Mahmood, was a District Judge in the State and had, by the
recognition of his extraordinary abilities, the unprecedented elevation
to the Bench of the High Court, while he was still in grade III of the
District Judges. The Law Reports have left immortal memorials to
his profound knowledge of law and a deep study of subjects far far
beyond the ordinary boundaries of legal knowledge. Syed Akbar Husain
is ranked, even now, with the great poet Hali for his Urdu poetry
which, because of rich portrayal of modern life, is sung even today.
Sri Baijnath Das, a subordinate Judge of the State, was an active
social reformer and while in service, presided in social conferences.
152
Sri S. C. Basu, another subordinate Judge, became well-known for
the scholarship and researches in Sanskrit and Pali. Sri P. C. Mogha,
another member of the Service, was the author of two books— “The
Law of Pleadings’'’ and “Conveyancer”— books which did pioneer
work and have since their first publication gone into several editions.
There are many other members of the Service, some of them alive,
who have achieved distinction in various walks of life.
• By the year 1915 the Judicial Service of the State subordinate
to the Allahabad High Court had fully established its glorious
reputation for honesty, integrity and legal acumen of its luminaries.
The Government of India Act, 1915 laid down the following sources
from which appointments of High Court Judges could be made :
(a) Barristers, with one-third reservation for them,
(b) I. C. S. District Judges, with one-third reservation for
them, and
(c) Vakils of High Courts of not less than 10 years’ standing
or Civil Judges of not less than 5 years’ standing.
At a time when the number of High Court Judges did not
exceed 11, at least two of them were from amongst the members of
the State Judicial Service. In the year 1925, when the Oudh Chief
Court was constituted under the Oudh Courts Act, it was provided
in the enactment that at least one out of the total number of five
Judges shall be from amongst the membets of the Judicial Service
of the State and at least two shall be the members of the Indian
Civil Service, who have worked as District Judges for at least 3 years.
The Government of India Act, 1935 did away with the system
of reservation. But the sources from which High Court Judges
could be appointed continued to remain the same as contemplated by
the Government of India Act, 1915. In the absence of reservation, the
number of the Judges on the High Court Bench drawn from the State
Judicial Service rose from 2 in the year 1935 to 7 in the year 1954.
< 6 ^= 153
There is no reservation for any section under the Constitution
of India, under which the appointment of High Court Judges is
contemplated only from the following two sources :
(a) Advocates of not less than io years’ standing, and
[b) Members of the Judicial Service who have put in at least
io years of service.
The members of the Indian Administrative Service are no longer
eligible for appointment either as District Judges or as High Court
Judges. Thus all the District Judges in the State are now members
of the Subordinate Judiciary (known as Higher Judicial Service).
The recognition of the worth of the Subordinate Judiciary
beginning from the Government of India Act, 1915 and culminating
in the provisions of the Constitution of India is the greatest tribute
which could be paid to the pioneer work done by the distinguished
members of the State Judicial Service of Uttar Pradesh.
THE DEVELOPMENT OF THE JUDICIAL SYSTEM FROM
THE TIME OF THE EAST INDIA COMPANY
(1600—1857)
It would be of interest to examine, briefly, the development of
the judicial system from the times of the East India Company,
though we are concerned only with the growth of the judicial system
during the regime of the Company and not with the manner in which
the Company, a trading concern, became a political power. It was
in 1600 that Queen Elizabeth granted a Charter to the Company to
trade in all parts of Asia. In 1601, the Queen granted to the
Company power “to make, ordain and constitute such and so
many reasonable laws as to them or the greater part of them,
being then and there present, shall seem necessary and con-
venient for the good government of the Company”. The Charter
was renewed by successive British Sovereigns, from time to time.
in 1609, 1661, 1668, 1698 and so on, with additions and altera-
tions. The Company, with the permission of the Mughal Emperors,
built fortifications for its factories, four of which were originally
built at Surat, Madras, Bombay and Hoogly. The last one, with
which alone we are concerned, was established in 1640, because
the Regulations originating in Bengal spread, in due course, to the
territories of this State. Within these fortifications, Indians as well
as Europeans built their houses ; and when “the Nabob, on that
account, was about to send a Qazi or Judge to administer justice to
those natives, the Company’s servants bribed him to abstain from
this proceeding”.* The government of the Company formally came
to an end in 1857, when the great Mutiny, now popularly known as
the First War of Indian I ndependence, took place. By the Govern-
ment of India Act, 1858 (21 & 22 Viet. c. 106), which came into
force on September 1, 1858, it was declared that thenceforth “India
shall be governed by and in the name of ” the Queen and that all the
powers and territories of the Company would vest in her.
Parts of the territories, now comprised in the State of Uttar
Pradesh, were known as Regulation provinces, because they were
administered by Regulations made by the Governor-General under
the Charter Acts of British Parliament. The other parts, e.g. Oudh,
were non-Regulation territories because they were administered
not by Regulations but by the executive orders of the Govenor-
General. The Judicial system, therefore, originally differed, in its
character, in the two parts. This accounts for the existence, formerly,
of two judicial services in this State, one in Oudh and the other in
the rest of the State, though they are now amalgamated.
Early in the Company’s career, in 1618, Sir Thomas Roe, the
ambassador of King James I, had, by treaty with the then Mughal
Mayor o£ Lyons v. East India Company; (1836) 1 M. L A. 174 (*73).
Emperor, secured, for the Factory at Surat, the privilege, giving a
power to the Company to decide disputes between the Europeans only.
As already pointed out, the Tribunals established by the Company for
the administration of justice between Europeans usurped jurisdiction
to try cases between Indians settled within the fortifications also.
By the Charter of 17 26 granted by George I, the Crown estab-
lished Municipalities and Mayor’s Courts at Madras, Bombay and
Fort William, each consisting of a Mayor and nine Aldermen, seven
of whom, with the Mayor, were required to be natural-born British
subjects. This was the first type of courts established by the British
Crown. They were empowered to try, hear and determine all Civil
suits, actions and pleas between the parties. By the same Charter,
the Governor and Council of each of the three towns were constituted
Government Court of Record, to which appeals from the decisions
of the Mayor’s Court might be made, in cases involving sums under
1,000 pagodas; a pagoda was then equal to about 8 shillings. The
decision of the Government Court was final; but, if the sum involved
was 1,000 pagodas or more, an appeal lay from the Government
Court to the King-in-Council.
By the same Charter, the Governor and five of the Members
of Council of each town were appointed Justices of the Peace and
were constituted a criminal court with powers to try and punish all
offences, except high treasons, with the aid of Grand and Petty
juries in the same manner as the Commissioners of Oyer and Termi-
ner and Gaol Delivery did in England.
George I’s Charter of 1726 was renewed by another Charter,
granted to the Company in 1753 by George II, which continued the
Mayor’s Courts, with certain amendments intended to remedy
defects of which the Company had complained against. The new
Charter also established a Court of Quarter Sessions for trying
criminal cases, and also a small cause court to be called a Court of
Request, in each of the three Presidency towns, for the determination
of suits “where the debt, duty or matter in dispute did not exceed
five pagodas”. All these Courts were made subject to the control
of the Court of Directors, who were authorised by the Charter to
make by-laws, rules and ordinances for the good government and
regulation of the several courts of judicature established in India.
The chief alteration effected by the new Charter was that the
Courts, which they established, were limited in their Civil jurisdic-
tion to suits between parties who were not “Natives” of the several
towns to which the jurisdiction applied. Suits between ‘natives’
were directed not to be entertained by the Mayor’s Courts unless by
consent of the parties. They were all Courts of His Majesty, the
King of England, and brought in the Common law of England. But
their jurisdiction was limited within the Company’s fortifications.
Outside these fortifications, the Qazis and Muftis continued to
administer justice, under the Mughal rule, in criminal matters
according to Mohammadan Law and in Civil matters according to
personal law.*
The territories now comprised in the State of Uttar Pradesh
came under the authority of the Company by stages. Hence the
judicial system in these territories underwent change by stages.
William Crooke, in his book “N.-W. P. of India” (1897), summarizes,
at pages 122 and 123, the stages by which the various parts of this
State came under the authority of the Company.
Up to 1835, the territories, now comprised in Uttar Pradesh,
except Oudh, formed part of Bengal Presidency and were governed by
the Governor-General as part thereof. The judicial system introduced
in Bengal extended to this State as and when the various parts of
the territory. of this State came under the sway of the Company.
* DUBEY; Courts of Law and Admn. of Justice, 1965 ed., pp. 3-4.
Space does not permit a description of the clash between the
Executive and Judicial authorities or of the union, separation and
again a re-union of fiscal and judicial powers. Cowell in his
lectures on the History and Constitution of Courts has given ample
and illuminating details of the same.
Lord Clive landed in India for the last time .in 17b 5 * He
decided to avail himself of the sovereignty of the Mughals. He pro-
ceeded to obtain the grant of the Diwani, the power of collection of
revenue, from the Mughal Emperor and succeeded in this by obtain-
ing the Farman, dated the 12th August, 1765, granted by King Shah
A km- The collection of revenue in India involved then the whole
administration of civil justice. The Nizamat or the administration of
criminal justice was for the time being left with the Moghul’s
lieutenant, the “Nabob” of Murshidabad. The administration, for
the most part, of the revenues, and still more of civil justice, was
conducted through ‘native’ agency till the nth May, 1772, when the
Company, by its Proclamation of the same date, ‘stood forth as
Dewan’ and assumed the direct charge of the collection of revenue
and administration of justice through its own servants.
In the same year Warren Hastings became the Governor of
Bengal. He established, under the Judicial Regulations passed on
August 21, 1772, Mofussil Diwani Adalats presided over by
the Collectors of revenue in each district. These courts took cog-
nizance of all disputes, real and personal, all causes of inheritance,
marriage and caste, and all claims of debts, contracts and demand of
rent. The questions of succession to the Zamindari and Taluqdari
property were, however, not submitted to these courts but were
reserved for the decision of the Governor-in-Council. A court of
criminal jurisdiction, called the Faujdari Adalat, was also established
in each district under the same Regulations. In it a Qazi and a
Mufti, with the assistance of two Molvies appointed to expound
158
the Mohammedan Law, sat to hold trial of all criminal offences. The
English Collectors of Revenue were directed to superintend the
proceedings of these courts. Established by the same Regulations,
the Sadar Diwani Adalat and Sadar Nizamat Adalat, respectively,
heard appeals from the Civil and the Criminal Courts.
In 1774, the Mayor’s Court at Calcutta was abolished
and, in its place, a new Crown Court, called the Supreme
Court of Judicature, was established in that town, by the Charter
granted under the East India Company Act, 1772 (13 Geo. Ill
c. 63), popularly known as the Regulating Act of 1773. An
appeal from it lay to the Privy Council. By another Act of
Parliament, passed in 1781 and known as the Act of Settlement (21
Geo. Ill c. 70), it was expressly declared that the Supreme Court
would not have jurisdiction in any matter concerning revenue, or
concerning any acts done in the collection thereof, according to the
practice of the country or the Regulations of the Governor-General-
in-Council. The Sadar Diwani Adalat was constituted, by the Act
aforesaid, to be a Court of Record ; and it was also provided for the
first time, by the same Act, that the decisions of this Court, in
cases valued at £5,000 (Rs. 50,000) or upwards, would be
appealable to the Privy Council. Thus, although this Court was not
established by a Royal Charter, it was nevertheless distinguishable from
the ordinary courts of the Company, and traced its final establish-
ment to the recognition by, and sanction of, the British Parliament.
In 1793, Cornwallis completely reorganized the Mofussil
courts. The Governor-General-in-Council passed, in that year, a
large number of Regulations establishing Courts of Zillah and City
Magistrates for trying petty offences, and four Courts of Circuit
in the Presidency of Bengal, under the superintendence of English
Judges, assisted by Indians versed in Mohammadan Law, for
trying, in the first instance, persons charged with crimes or
159
misdemeanours, and enabling the Governor-General-in-Council to sit
in the Sadar Nizamat Adalat and superintend the administration of
Criminal Justice throughout the Presidency. For the hearing of
civil actions, Courts of Zillah and City Judges were .created.
Four Provincial Courts of Appeal were established within the
provinces of Bengal, Bihar and Orissa for the purpose of hearing
civil appeals from the several Zillah and City Courts; the Sadar
Dewani Adalat at Calcutta being vested with appellate jurisdiction
and general power of supervision over the inferior courts in all suits
of a value above Rs. 1,000. Below the City and Zillah Courts, were
two classes of inferior Judges. “First in order, the Registrars of
those courts who, when authorised by the Judges, were empowered
to try and decide causes of amounts not exceeding Rs. 200;
their decrees not being valid until revised and countersigned by
the Judge. The next and lower grade of Judges were the Native
Commissioners who were empowered, by Regulation XL of 1793, to
hear and decide civil suits for sums of money or personal property
of value not exceeding 50 Sicca rupees. Of these officers the head
Commissioners were called Sadar Ameens and the rest were called
Moonsiflfs.”*
Diwani and Faujdari Adalats on the Bengal pattern were
established in Benares in 1795, anc * in the Ceded and Conquered
provinces, i. e. the rest of the present Uttar Pradesh, except Oudh,
in 1803-05. At the same time, two Provincial Courts of Appeal and
Courts of Circuit were also established, one at Benares and the other
at Bareilly; and the jurisdiction of the Sadar Adalats at Calcutta was
extended, by various Regulations, up to these places. It. was in
1832, that a separate Sadar Diwani and Nizamat. Adalat was
established by Regulation VI of 1831, for the North-Western
* Cowell ; History and Constitution, etc, p. iy6.
Provinces (the present U. P., except Oudh), with similar powers
as those possessed by the Sadar Courts at Calcutta.
This is the general outline of the system which was established
for the administration of civil and criminal justice. The year 1793
marks the era of judicial independence. The Government endea-
voured to separate their judicial and executive functions and to
render the officers who performed the latter functions amenable to
the authority of those who exercised the former. The Courts so
established lasted for a considerable time, nearly eighty years; but
because of the process of occasional extension and repeal, the statutory
provisions which created them are enveloped in some obscurity.
Regulation V of 1831 made some important alterations. The
object was recited in the preamble to be the gradual introduction of
respectable Natives into the more important trusts connected with
the administration of the country. Moonsifs were invested with
power to try and determine suits for money and other personal
property of the value of Rs. 300, and suits with regard to land of
the value of Rs. 300, except such land as was exempt from the
payment of revenue. The Judges were empowered to refer to the
Sudder Ameens any suit the value of which did not exceed Rs. 1,000.
A new office, that of Principal Sadar Ameen, was created, to whom
suits of value not exceeding Rs. 5,000 might be referred. Registrar’s
Courts were abolished; Provincial Courts of Appeal were gradually
superseded, and, in two years, finally abolished; and original
jurisdiction was given to the Judges in all suits exceeding in
value, Rs. 5,000 with an appeal direct to the Sadar Dewani Adalat.*
In the period which intervened between 1793 and 1831, the
relations of the Collectors to the Civil Courts underwent considerable
alterations.
* Cowell, History and Constitution, etc., p. 178.
161
With regard to the Civil Courts throughout the Presidency of
Bengal, the course of legislation had introduced considerable confu-
sion as to the precise functions of some of the Judges. The original
legislation on the subject was contained in the Regulations of 1793,
the provisions of which had been extended in 179 5 > 1 a11 ^ 1804
to Benares and the Ceded and Conquered provinces, respectively.
The Adalat system itself remained in some obscurity, so far as
the legislation on which it rested was concerned, till a very recent
period. In order to ascertain the constitution and the jurisdiction
of the Civil Courts at any time before 1871, it is necessary to trace
out and piece together various bits of legislation which were
distributed over no less than thirteen different enactments.
It was in 1868 that the old designations of various Judges in
the Presidency of Bengal, including the North-Western Provinces,
were altered. By Act XVI of 1868, the office of Sadar Ameen was
abolished, and Principal Sadar Ameens were designated ‘Subordinate
Judges’. Three years later, the Bengal Civil Courts Act, VI of
1871, which repealed all the previous Acts and Regulations relating to
the constitution of Civil Courts in the Presidency of Bengal, provided
for the appointment of ‘District Judges, Additional Judges, Sub-
ordinate Judges and Munsiffs’. Ultimately, came the present Bengal,
Agra, and Assam Civil Courts Act, XII of 18 87, which also provided
for the same four' classes of Civil Courts in the aforesaid provinces.
The Courts established by the British Crown and Parliament,
for the most part, applied English law, both civil and criminal ;
exceptions being made in favour of Hindus and Mohammedans. In
suits against parties belonging to either of these religions, by
whomsoever, instituted, whether by Europeans or Indians, the law
applicable to the defendant prevailed. The proceedings of the Courts
were governed by the English law of procedure. Until at least 1834,
they, for the most part, were amenable only to the Legislative autho-
rity of Parliament, and to such Regulations of Government as the
Supreme Court might choose to acknowledge and register.
The Mofussil Courts, on the other hand, had nothing to do
with English law, but were amenable, in all respects, to the
Regulations of Government, and, when Hindu or Mohammadan Law
did not apply, or when no Regulations were applicable, were directed
to proceed according to justice, equity, and good conscience.
Oudh was annexed in 1856, to which the judicial Regulations of
Bengal did not apply. Like all other non-regulation provinces, it
also remained a non-regulation territory and the judicial system in
Oudh followed the pattern of other non-regulation territories and
was different from that of the N.-W. Provinces.
Various grades of Courts were established in Oudh, by Act XIV
of 1865, similar to those provided for the Central Provinces
under the same Act. But, as this Act was framed chiefly with
reference to the Central Provinces, it was found incomplete and
inconvenient as regards Oudh. Accordingly, in 1871, the Oudh
Civil Courts’ Act was passed, which applied to all Civil Courts in
Oudh. It reconstituted, almost on the same model as that of the
1865 Act, five grades of Courts, viz., those of (1) the Tehsildar,
(2) the Assistant or Extra Assistant Commissioner, (3) the Deputy
Commissioner or the Civil Judge of Lucknow, (4) the Commis-
sioner, and (5) the Judicial Commissioner. The Governor-General-in-
Council was empowered to fix, and, from time to time, to vary, the
number of Courts of each grade. The general control over all the
Courts of the first and second grades in any District vested in the
Deputy Commissioner, and the control over the Courts of the first
three grades, in any division, vested in the Commissioner, subject to
the superintendence of the Judicial Commissioner. The Court of
163
the Deputy Commissioner was the Principal Civil Court of Original
jurisdiction in any district and he could direct the business in the
Courts of the first and second grades to be distributed among such
courts as he thought fit, having regards to the limits of their
jurisdiction. He entertained appeals from those courts except when
the amount in dispute exceeded 1,000 rupees, in which case the
appeal lay to the Commissioner. Appeals lay also from the Deputy
Commissioner to the Commissioner and from the latter to the
Judicial Commissioner, who was empowered to refer cases, in which
he entertained any doubt, to the High Court of the North-Western
Provinces, which latter Tribunal was directed to deal with the case
so referred as if it were an appeal instituted in that very Court.
Civil Courts, on the lines of those in the N.-W. Provinces,
were established in Oudh by Act XXII of 1879, which Act, as
amended by Act XVI of 1891, established the following grades of
Civil Courts in Oudh; namely, (1) the Court of the Judicial
Commissioner, (2) the Court of the District Judge, (3) the Court of
the Subordinate Judge, and (4) the Court of the Munsif. The Oudh
Courts Act, IV of 1925, created another Court in Oudh, namely,
that of the Additional Judge and also altered the designation of the
‘Subordinate Judge’ to ‘Civil Judge’. This alteration of designation
took place in the erstwhile province of Agra in 1936. Under the
same Act, the Court of the Judicial Commissioner of Oudh was
replaced by a Chief Court, which was ultimately amalgamated with
the Allahabad High Court in 1948. The Bengal, Agra and Assam
Civil Courts Act, 1887, was extended to Oudh in 1956 by U. P.
Act no. II of that year ; and thereupon all the Civil Courts of Oudh,
constituted, and the powers conferred thereon, by the Oudh Courts
Act, 1925, were deemed to have been respectively constituted and
conferred under the provisions of the Act of 1887.
164 ^
"N x
Dr, N. P. Asthana, President Bar Association, High Court, Allahabad
(First Advocate General 9 U. P whose 93 rd birthday was celebrated on
April so, 1966)
History of the High Court Bar Association
By
SRI SATYENDRA NATH VARMA
Advocate , High Court, Allahabad
B OOKING back at the annals of the High Coutt Bar Associa-
tion one is bound to be struck by the awe and veneration which
its great and distinguished members inspired and, by their examples,
continue to do so. It has been a glorious history of giants who
were not content with being mere great and celebrated lawyers but
who transcended far beyond into much nobler fields of human activi-
ties such as national struggle for deliverence from an alien govern-
ment. I am not saying so, because the past is always said to
appear more luminous from a distance, but because the contribu-
tions of some of the more distinguished members of our Bar have
become matters of national history.
It would be difficult to conceive any record of public life and
of eminent publiemen, educationists and statesmen of the country
without mentioning the names of Pt. Ajudhia Nath, Sir Sunder Lai,
Pt. Moti Lai Nehru, Pt. Madan Mohan Malviya, Sir Tej Bahadur
165
Sapru, Dr. Satish Chandra Banerji, Dr. Sachchidanand Sinha, Sri
Purshottam Das Tandon and last, but not the least. Pandit Jawaharlal
Nehru, who all belonged to the Bar of this Court. The above is only
a list of those of our distinguished members of the Bar, whose activi-
ties were not confined to the field of law but who shone in other
sphercf of life, and, in their own ways, were instrumental in mould-
ing the course of history of this nation and who are now no more
with us. I cannot, therefore, help feeling proud that I belong not
only to this profession rightly described by Lord Simonas “the greatest
profession of the world,” but that I am a member of an association
to which these great lawyers belonged.
The Allahabad High Court Bar Association had its birth (under
a different name) almost a century ago, and if one attempted to write
its biography and to do justice to the subject it would cover
volumes. I shall, therefore, endeavour to provide only fleeting
glimpses of the subject.
In the year 1869 the High Court then, known as the High
Court of Judicature for the North Western Provinces shifted from
Agra to Allahabad. At that time the Bar was composed of the
Barristers of the English and Irish Bar, the Advocates of Scotland
and the Vakils enrolled by the High Court. Except Mr. Syed M.
Mahmood the rest of the Barristers practising here were Europeans,
who, for more than one reason, preferred to remain aloof from the
Vakils. Neither were the Vakils anxious to mix with those
Barristers, either socially or otherwise.
In the year 1873 the Barristers decided to have an association
and on February 3, 1873 they formed an association, called the Bar
Association, with 12 European Barristers as its first members, and
Mr. Jardinc became its first President. The object of the Associa-
tion was to consider matters connected with the interests of the Bar
in the Province and especially to promote a high professional tone in
all branches of legal profession and to repress unprofessional
practices.
The Allahabad High Court has had very distinguished
European Barristers, viz., Sir Arthur Strachey (who later on became
a Judge of the Bombay High Court and returned to Allahabad
as the Chief Justice of this High Court in 1899), Sir Walter Colvin,
Dillons (father and son), Conlon, Alston and O’Conor. However,
with the exception of Mr. O’Conor, the Barristers flourished mostly
on the criminal side. Sir Charles Ross Alston was one of the most
brilliant and powerful advocates this Court has had on the criminal
side. Sir Charles joined the High Court in 1885 and practised for
nearly 53 years till he died in 1937. He was a fearless advocate and
would place most intricate matters with amazing brevity and clarity.
In 1910 he was raised to the Bench for a short time. He was
always in great demand for conducting important criminal cases in
neighbouring provinces and native Indian States. He was not only
very highly respected and popular among every section of the Bar
but had a jovial temperament and possessed keen sense of humour.
Sir Charles was extremely short-statured ; and it is said that once one
of the Judges, who was very tall and hefty, told Sir Charles at a
certain party that he could put him in his pocket. Sir Charles took
no time in retorting ; “You will then carry more brains in your
pocket than in your head”. Sir Charles was also the President of
the Bar Association for a number of years.
Mr. B. E. O’Conor, practised exclusively on the civil side and
was one of the leaders of the Bar. He had a large first appeal
practice, and both Mr. O’Conor and Sir Tej Bahad ur Sapru shared
the leadership of the Bar on the civil side for decades. He came to
High Court in 1893 and practised till 1937 when he died.
167
Mr. O’Conor was elected Secretary of the Bar Association in 1900
and remained so till the year 1936 with an interruption of an year
or so. The length of his tenure as Secretary speaks volumes of the
affection and regard in which his fellow members must have held
him. It also dispels the myth that busy lawyers can have no time
to attend to extra-professional matters.
The first subjects, which appear to have agitated the minds of
the Barristers from the very inception of the formation of their
Association, were the standard of fee that they should charge for
outstation cases and for appearance in District Courts of Allahabad
itself and the question of suppressing the practice of “toutism”.
It was two years after the Bar Association was founded that the
Vakils of the High Court decided to form their own association and
in 1875 the Vakils’ Association was established. The objects for
which this association was formed were, “ (a) To consider matters
affecting the interest of the legal profession in the North Western
Provinces and more specially of the Vakils, (b) To promote high
professional tone among the members of the profession and (c) To
watch the State of the law and the progress of legislation, and to
take such steps as may be deemed necessary in respect thereof.”
The first President of the Vakils’ Association was Pt. Ayudhia
Nath who attained a very high position at the Bar. He was a
fearless advocate and contributed a great deal towards the public life
of the country. Pt. Ajodhia Nath was a venerable figure and looked
majestic with long flowing beard. He was the Chairman of the
Reception Committee at the IV Session of the Indian National
Congress held at Allahabad in 1888 where his powerful address
was greatly appreciated. Fortunately for us we have today in our
midst his son, Pt. Gopi Nath Kunzru, one of the leaders of our Bar,
whom we all admire for his fearlessness.
^ 168 ^
Until recently there existed a traditional, but healthy, rivalry
between the Barristers— particularly European Barristers and Vakils
of this Court. This gulf naturally widened further because of the
existence of two Associations in the Bar of the same High Court.
The European Barristers, because of their race and the fact that
Englishmen were ruling this country, had developed a complex
against the “ Native Vakils ” (which term they often used in their
proceedings). They always considered themselves superior to the
Vakils, more so because under the rules then existing the junior-
most Barrister was entitled to claim seniority and the right of
pre-audience against any Vakil however senior. The Vakils for their
part thought that this complex amongst the Barristers emanated from
the large practice which the Vakils enjoyed on the civil side almost
to the complete exclusion of the Barristers and the superior intellect
of some of the outstanding Vakils and their independent outlook
and attitude towards public questions. The fact, however, remained
that the leadership of the Allahabad High Court Bar always belonged
to the Vakils (later on Advocates), e. g.. Sir Sunder Lai, Mr. Jogendra
Nath Chaudhri, Pt. Moti Lai Nehru, Sir Tej Bahadur Sapru,
Dr. Satish Chandra Banerji, Mr. Pearey Lai Banerji, Dr. Kailas Nath
Katju, Pt. Shyam Krishna Dar, Dr. Narayan Prasad Asthana,
Pt. Gopal Swarup Pathak, and Pt. Kanhaiya Lai Misra (our present
Advocate-General). I am not, for a moment, forgetting that we
have had eminent Barristers also, as leaders of the Bar, e. g.,
Messrs Ryves, O’Conor, Boys, Alston, Dillon, Colvin, Conlan and
Sulaiman.
It was in 1896, nearly thirty years after the High Court was
established, that the Chief Justice was given power to admit a Vakil
to the status of an Advocate, if, in his opinion, the lawyer was of an
outstanding ability and merit. M. Ram Prasad, Mr. J. N. Chaudhary,
169
Pt. Sunder Lai and Pt. Mo ti Lai Nehru were admitted in 1896 as
the first batch of Vakils to the status of Advocates.
Although these four Vakils had been admitted to the status of
Advocates, they refused to join the Bar Association and continued to
remain members of the Vakils’ Association. The Bar Association, as
mentioned earlier, was dominated by Europeans and the Vakils were
in no mood to be dominated by them.
Although Vakils and Barristers had their differences over
smaller issues, quite often on the question of right of pre-audience,
there was never any major clash between the two, except once. When
the first batch of Vakils was raised to the status of Advocates, a
question arose whether they could wear the same gown which was
worn by the Barristers of England. The members of the Bar Asso-
ciation objected to it and, on this objection being raised, the then
Chief Justice, Sir John Edge, decided that Vakil- Advocates would
wear the gown which the Chief Justice himself wore, i.e. Q.C.’s
gown and since then the Vakil- Advocates have been wearing the
same gown as did the Judges, until lately, when the rules were
changed and both the Barristers and the Advocates had to wear the
same gown.
It will not be out of place to mention that the two Associa-
tions, until 1957 "when they were amalgamated, were housed in
different portions of the High Court building, which, incidentally,
happened to be at quite a distance from each other. Several
attempts were made right from 1929 onwards to amalgamate the
two Associations; but, for one reason or the other the amal gamation
could not be brought about earlier than 1957.
The objects for which these two Associations were formed can
be said to have been achieved in a fair degree. The records of the
two Associations would show how scrupulously and cautiously they
170
have been guarding the interest of the profession. The records are
replete with resolutions passed during the past 93 years touching upon
various aspects of the profession in general and the conduct of its
members in particular. The Association has always kept a constant
vigil and, whenever it found any inroads into the civil liberties, it
took action promptly registering its protest in the strongest words.
One will also find from the records the efforts made by the two
Associations in toning up and maintaining high code of professional
conduct by members of the Bar; and in this respect, even an impor-
tant member of the Bar would not be spared if he were found guilty.
The high standard of professional ethics that was expected of a mem-
ber of the Bar in those days would appear from the following incident.
One Mr. X, a Vakil, practising in the High Court, changed his office
from one locality to another and had the following notice published
in a journal that was published from Allahabad :
“NOTICE
The undersigned hereby informs his clients that he has removed
his office from Kydganj to Chowk, Mohalla Mirganj, that is, to
the house well-known as Kothi so & so. All communications to him
should, therefore, in future be made to the above address.
Hour of attendance from 6-30 to 9-30 in the morning, and
from 5 to 9 in the evening.
Mr. X.
Vakil, High Court, Allahabad.”
This notice at once attracted the vigilant eye of the Associa-
tion which demanded of the member explanation as according to the
Association the notice amounted to advertisement. The lawyer gave
his explanation, which, however, failed to satisfy the Assocation,
171 * 4 ^-
The member’s conduct was accordingly condemned as unprofessional
and he was expelled from the Association and the matter was
referred to the Hight Court. There are several other instances where
the Association took prompt action against members whose conduct
tended to soil the fair name of the profession.
The Vakils' Association was a well-knit body and this was
demonstrated in connection with an incident in 1927 which would
stand unique in the history of the Association. Sir Tej was the
President of the Association and Pt. Shyam Kishan Dar (later a
Judge of this Court) was its Secretary, Mr. Justice Dalai and Mr.
Justice Pullan, both members of the Indian Civil Service, constitut-
ed a Bench to hear cases under Order XLI, Rule 11, C.P.C. They
used to read the papers of the cases at home. Next day when the
cases were taken up they would confine the arguments to points
advanced by them and did not allow the Counsel to build up their
arguments. With the result the cases could not be placed properly.
This caused great deal of resentment among lawyers and Sir Tej
Bahadur Sapru took a serious view of the matter and called a meeting
of the Association as, in his opinion, this manner of hearing of
appeals was likely to shake litigant public’s confidence in the
administration of justice. Thereupon the Association passed a
resolution in the following terms : “Resolved that a courteous,
polite but firm letter be sent by the Secretary to Mr. Justice Dalai
and to Mr. Justice Pullan representing to them the general
dissatisfaction against their impatience while hearing cases
in Court, The letter should be drafted by the Secretary and
be approved by the President.” Accordingly a letter was sent
to the two learned Judges under the signature of Pt. S. K. Dar,
the Secretary of the Association. The Acting Chief Justice, Sir
Cecil Walsh was of the opininon that Mr, Dar was guilty of
172
contempt, he sent for Mr. Dar and asked him to apologise
and on Mr. Dar’s pointing out that he had only signed the letter,
enclosing the resolution, as Secretary of the Association and there
was no question of his personal apology, the learned Acting Chief
Justice issued a notice of contempt of Court against Mr. Dar. The
matter was considered by the Vakils’ Association and every member
of the Association headed by Sir Tej Bahadur Sapru signed an
identical letter which was sent to the two learned Judges and
the copy of it was sent to the Acting Chief Justice. Thereupon
notices were issued to all the members of Association to show cause
why they should not be dealt with for contempt of court. As every
member of the Vakils’ Association was involved, the Barristers were
requested to defend them and Mr. O’Conor, Mr. B. Malik (later on
Chief Justice of this Court) and Dr. M. N. Agarwal were selected to
represent the members of Vakils’ Association. The Bench, constituted
for hearing the case, consisted of Sir Cecil Walsh, Acting Chief
Justice and Sir Benjamin Lindsay. Mr. Justice Lindsay on coming to
know what the case was about told the Acting Chief Justice that he
refused to make himself ridiculous and would not like to be on that
Bench. The other English Judges adopted a similar attitudeand
then Sir Shah Mohd. Sulaiman was approached who agreed to form a
member of the Bench provided he was given 24 hours’ time to
mediate. His mediation resulted in a happy ending and the pro-
ceedings were dropped.
Another incident which deserves mention took place years
ago. A Senior Judge in a first appeal bench, who was an
English man, had adopted a method of asking the appellant’s
counsel the precise point involved in the case as soon as the
first appeal was opened. The learned Judge was always in a
hurry to know at once the question involved in the appeal and as
most of the first appeals involved questions of facts and the point
could not be formulated directly and with such precision as the
learned Judge would have liked it to be placed, counsels found them-
selves in difficulty. The learned Judge who was impatient by
temperament would thereafter like to dispose of the appeal in half
an hour. He used to dispose of a large number of first appeals in a
day . This attitude was strongly resented by the members of the Bar
and while the matter was being discussed in the Vakils’ Association
Mr. Gokul Prasad (later Mr. Justice Gokul Prasad) who was a senior
member of the Bar and was commanding large civil practice, asked
one of the junior members of the Bar if he had any first appeal for
hearing. The particular junior did have a first appeal before that
Bench. Munshi Gokul Prasad asked him to file his appearance in
the first appeal. The Junior told Munshi Gokul Prasad that his
client would not be able to pay his fee. Munshi Gokul Prasad said
that he was not asking for any fee. When the case was called out
Munshi Gokul Prasad stood up to argue the first appeal. The
members of Vakils’ Association had collected in the court-room in
good number. (Munshi Gokul Prasad had not disclosed what he
was going to do). The learned Senior Judge was happy to see
Munshi Gokul Prasad appearing before him and straightaway asked
the point involved in the case. Munshi Gokul Prasad did not
answer and instead requested the learned Judge to skip over the first
2 pages of the paper book containing the grounds of appeal and
started reading the plaint beginning from “In the Court of
Suit No so & so versus .... so & so. The plaintiff begs to
submit as follows ”
The learned Judges were surprised at this method of argument
of Munshi Gokul Prasad who was well known for being brief and to
the point. The learned Judges inquired if it was necessary to read all
174
that and further remarked that that was not the way in which Munshi
Gokul Prasad usually argued his appeal. All this time the learned
Judges had also observed the crowd which had collected in the
Court and considering that it was a first appeal of not any sensational
nature they smelt something unusual. Munshi Gokul Prasad there-
upon raising his voice said, “My Lords, this is a first appeal which
lies as a matter of right. The client has paid a heavy court-fees and
he has a right to be heard. I shall take your Lordships through the
paper book from cover to cover.” The learned Judges then realised
what the matter was and requested Munshi Gokul Prasad to proceed
with the case in his usual manner. Munshi Gokul Prasad explained
to the Judges the desirability of giving appellants in a first appeal
the hearing which it deserved. Since then the learned Judge
changed his method and never resorted to short-cuts.
M. Ram Prasad, Pt. Bishambhar Nath, Mr. Jogendra Nath
Chaudhary, Pt. Sunder Lai, Pt. Moti Lai, Pt. Madan Mohan Malviya,
Mr. Satya Charan Mukerji, Dr. Satish Chandra Banerji, Sir Tej
Bahadur Sapru and Mr. Pearey Lai Banerji have been some of the
distinguished leaders of the Bar who have served the Vakils’ Associa-
tion (later on Advocates’ Association) in one capacity or the other
with distinction. I have not mentioned the names of those who are
fortunately still with us and who have served the Associationno less.
Readers would find the lives of great lawyers of this Court
dealt with at different places in this Volume and it is not necessary
to write about them here. I, however, cannot resist the temptation
of saying a few words about some of them.
Sri Jogendra Nath Chaudhary, it is said, has been one of the
greatest Advocates this High Court has produced. He had an extra-
ordinary command over the English language and there have been
few ’who could equal him in legal learning.
175
Once there were two cross first appeals and Sri Jogendra Nath
Chaudhary and Pt. Moti Lai Nehru were appearing against each other.
Mr. Chaudhary was in the habit of marking the paper books which
he had looked into with red and blue pencil. Having a very large
first appeal practice he had not been able to look into these appeals.
However, as the appeal in which Pt. Moti Lai Nehru was appearing
for the appellant was listed first. Mr. Chaudhary had thought
that he would look into the brief while Pt. Nehru would be arguing
for the appellant. Before Mr. Chaudhary arrived in the court
Moti Lalji had discovered that Mr. Chaudhary had not looked into the
briefs as he had noticed that Mr. Chaudhary’s briefs were not marked.
When the case was called out, Pt. Moti Lai stood up and in order to
put Mr. Chaudhary in some discomfiture and to place him in a tight
comer requested their Lordships to hear the first appeal in which Mr.
Chaudhary was appearing for the appellant first as that was the subs-
tantial appeal and Pt. Nehru’s client had a very nominal claim in his
appeal. The learned J udges thought that it was a fair suggestion and
asked Mr. Chaudhary to open his appeal. Mr. Chaudhary understood
Pt. Moti Lai’s game. He, however, stood up, glanced at the grounds
of appeal and discovered that the case involved a question of fraud.
It is said that Mr. Chaudhary gave such a masterly exposition on the
elements of fraud for nearly three hours that he kept the whole court-
room spellbound and when the court rose for lunch at one o’clock
Mr. Chaudhary looked into the facts of the case during the
interval and thereafter argued out the appeal on facts after the court
reassembled.
About Pandit Madan Mohan Malviya, it has been said by Sir
Tej Bahadur Sapru that he could not think of anyone who worked
with such devotion and spirit of sacrifice in so many fields and achiev-
ed distinction in every one of them as the great Pt. Malviya. He
**&§*= 17b ^
was considered to be a lawyer of keen intellect, extremely fair in the
presentation of his case and courteous to his opponents. He was
held in high regard by Judges not only for his ability but for his
spotless character. So great was Pt. Malviva’s command of English
that on one occasion a great British politician (in introducing him to
the audience in one of the rooms of the House of Commons) express-
ed his surprise that, without ever having been to Oxford or C am bridge
as a student, Pt. Malviya should have possessed such wonderful facility
of expression in a foreign tongue. It was after his retirement from
active practice that at the pursuasion of friends Malviyaji agreed to
argue the famous Chauri Chaura riot appeal. There was naturally
great crowd in the court to hear Malviyaji. Pt. Malviya’s argu-
ments rose to such great heights that Sir Grimwood Mears, Chief
Justice, who was one of the two Judges hearing the appeal, rose from
his seat thrice during the course of arguments and bowed to Malviya-
ji. After the arguments were concluded and while reserving the
judgment Sir Grimwood stopped the proceedings and told those pre-
sent in the Court that while it was not possible to say what would
be the fate of the appeal, it was necessary to observe that it was the
extreme good fortune of those who had heard Malviyaji in the case
and in his opinion no one else could have argued the appeal better.
As one of the President of the Congress, as the single handed founder
of the famous Hindu University of Benaras, as a skilful debator in
the Central Legislature, in the proceedings of which he took a very
prominent part for years, Pt. Malviya was a leader of whom not
only Allahabad Bar but the whole country is proud.
Dr. Satish Chandra Banerji was another jewel of this Court.
He was a Doctor of Laws of the Allahabad University and was a
Premchand Roycband Scholar. He was a very keen student of Shakes-
peare and it is said that on Sundays, and other holidays, students
177 ^
from the University used to go to his house on Edmonstone Road for
the solution of their difficulties. Even in the midst of the prepara-
tion of a heavy first appeal, he used to receive students with kindness and
used to help them in their academic problems. If he had not died at the
early age of 42 the history of this Bar might have been different. In
those days the trio of Sapru, Banerjiand Sinha (Dr. Sachchidanand Sinha)
was the object of universal admiration for their learning and culture.
Mr. Satya Charan Mukerjee was the undisputed leader among
the Indian Members of the High Court Bar on the criminal side. He
was a lawyer of great ability, experience and learning and possessed
amazing memory.
The position of the Rt. Hon’ble Sir Tej Bahadur Sapru in
this High Court v?as unique. Having joined the Allahabad High
Court Bar in 1898— where he practised for fifty long years, he was
enrolled as an Advocate in 1906, then considered a great distinction
as it placed him on a footing of equality in status with the members
of the English, Irish and Scottish Bar.
It was only after ten years of steadily rising practice that he
got his first great chance— a case of great importance under the Hindu
Law. Sir Tej was pitted in it against some of the eminent leaders
of the High Court Bar. The case lasted for some weeks, and he
argued it with such consummate skill and rare forensic ability that
at the conclusion of his address he. was unreservedly complimented
by the Chief Justice presiding over the Bench. It was this
case which established his reputation and at once marked
him out for the highest position at the Bar. He soon built up
an extensive and lucrative ‘first appeal* practice, and there had
scarcely been an important case since then in the High Court of
Allahabad in which he had not been engaged cither by the appellant
or the respondent.
178
By 1912, when he was engaged in some important
commercial cases, in the Lucknow Chief Court— absorbed in
1948 in the Allahabad High Court— he opposed successfully Sir
Rash Behari Ghosh, then the doyen of the Indian Bar, and
thus came to occupy a front rank position throughout the
United Provinces. By 1916 when he was engaged in a sensational
‘waqf’ case, in which Muslims as a community were keenly
interested and Sir Rash Behari again opposed him, he had come
to be acknowledged as one of the foremost leaders of the Bar
possessing an all-India reputation. His services had since
been in constant demand all over the country. Henceforward
he appeared in several cases of importance in the High Courts
of Calcutta, Patna, Lahore, Nagpur, Madras and other places ;
and had the first refusal of almost all the biggest cases in the
country.
Very seldom did Sir Tej indulge in wit or humour, but when
he did, the effect was generally devastating. A journalist in London,
who once rang him up at night, got it as much as he merited. “ Our
Indian Office has just cabled that you have been offered a peerage ”
He told him. “What of it ”? asked Sir Tej. “Well, Sir” persisted
the eager but exasperating newshawk ; “Could I know what title you
have chosen ?” “Certainly” replied that inveterate smoker (Sir Tej),
“It is the Duke of Biases”, and hanged the receiver down. That
was, indeed characteristic of him, even in court. He stated his case
with almost scientific precision. He was at his best when provoked by
a Judge by some harassing question. In the course of his submissions,
in the “Search-light” Contempt case, in the Patna High Court, when
pressed hard by the Chief Justice (whose decision had led to the
contempt proceedings being instituted) he made in all solemnity the
following submission “My lords, there is no presumption that a
179 ^2=
judge need know law.” No Judge on that Bench was provoked
after that into heckling Sir Tej.
It may safely be asserted that, while few advocates in India
stood higher than he did in forensic ability, deep legal erudition and
profund knowledge of Constitutional Law, there was, perhaps, none
who excelled him, in the present generation, in upholding the best
and highest traditions of professional standards. In personal and
public life also he upheld the best and highest traditions of social
conduct. And it was that which invested him with a moral grandeur
which, coupled with his vast erudition, made his name loved and
respected throughout this country and abroad.
In sheer forensic eloquence few could match Mr. Peary Lai
Banerji. Those who had the good fortune of hearing his father,
namely, Mr. Dwarka Nath Banerji. another eminent and distinguished
lawyer of this Court, say that his delivery and command over English
language was even superior to that of Mr. Peary Lai Banerji.
P. L. B., as he was affectionally called, was Advocate-General of U. P.
which office he filled with great distinction. With Dr. Kailas
Nath Katju he shared the leadership of the Bar for decades. Of
his many splendid performances the one that stands out was when
he was called upon to defend the great P. R. Das of Patna High
Court who had been charged by a Bench of Allahabad High
Court with having committed contempt of Court. It is said that
P. L. B. surpassed himself in forenisc ability and secured discharge
of the notice of contempt. b
The Allahabad Bar has produced some of the greatest Judges
of the country and the Court has given Chief Jusices and Judges to
almost every High Court in India.
The Vakils’ Association continued to exist till the year 1928.
After passasage of Indian Bar Council Act, 1926, the Vakils’ Associa-
tion changed its name and it became Advocates Association. The
Barristers’ Association -which was known as Bar Association somehow
assumed the name of Bar Libary some time in the year 1922.
Apart from Advocates’ Association and the Bar Library, the
Bar had a third Association which had comparatively small member-
ship. It came into existence under unfortunate circumstances.
Indian Barristers when they started practice in the Allahabad High
Court and applied for membership of the Bar Library, more often
than not, were blackballed and it was only in the second or third
attempt that they were elected. When Mr. Nihal Chand, a Barrister,
was blackballed, he refused to have to do anything with the Bar
Library. In those days a Barrister was eligible for membership of
the Bar Library only after six months practice in the High Court.
During that period he had no option but to join the group round
Mr. Nihal Chand and some of them stayed on in that group, specially
as there was no admission fee and no subscription to pay. This group
gradually grew and was given official recognition in 1933 by the then
Chief Justice, and since then it was known as ‘High Court Bar Asso-
ciation’. They were also given couple of rooms and the Association
consisted of both Barristers and Advocates.
In November, 1957, the three Associations amalgamated and
since then they are occupying the new building and the amalgamated
associations decided to call it the High Court Bar Association.
Since 1957, amongst the important events that have taken
place I would mention only three. On 3rd October, i960. Dr.
Rajendra Prasad visited the Association when the Association had the
privilege of admitting him as an honorary member of the High
Court Bar Association. On this occasion, Dr. Rajendra Prasad made
a very memorable speech in which he touched upon the [question of
introduction of qualifications for candidates to be elected to the
Legislatures and also upon the absence of the provision regarding
fundamental duties of citizens in the Constitution of India.
The next important event was when on 4th May, 1961, Dr.
Radhakrishnan, the then Vice-President of India, unveiled the port-
raits of 3 distinguished and great lawyers of this Court, namely. Sir
Sunder Lai, Pt. Moti Lai, Nehru and Sir Tej Bahadur Sapru, in the
Library Hall.
The third important event was when in April, 1965, Shri Lai
B aha dur Shastri, the then Prime Minister of India, unveiled the
portrait of his predecessor in office, Shri Jawaharlal Nehru, in the
Library Hall. Shri Jawaharlal Nehru after doing his Bar joined
the Allahabad High Court in the year 1912 and was a member of
the Bar Library for a long time.
This Bar gave the country not only the first President of the
Constituent Assembly, namely, Dr. Sachchidanand Sinha, who joined
the Allahabad Bar in 1896 and remained here till 1910 when his
election to the Imperial Legislative Council forced him to shift to
Calcutta (the then Capital of India) where he joined the Calcutta
High Court, and the first Prime Minister of the country, but has
also given three eminent lawyers to look after the Law Portfolio of
the Government of India, namely Sir Tej Bahadur Sapru, who was
the Law Member of the Viceroy’s Executive Council from the year
1921 to 1923, Dr, Kailas Nath Katju, Law Minister from year
1951 to 1952 and our present Law Minister, Shri Gopal Swaroop
Pathak.
The Association has a well-equipped Library,' has provided
furnished chambers for its members, spacious accommodation for
studying and preparing cases and owns a Printing Press which brings
out the Daily Cause List. Today, the Association has on its roll
413 members.
182
Any account of the history of the Bar Association will be
incomplete without making a mention of its present President. Dr.
Narain Prasad Asthana, a doyen of the profession. Dr. Asthana was
elected the President of the Bar Association in 1949 when the vacancy
in that office occurred on account of the death of Sir Tej Bahadur
Sapru, who was its President for 25 years. Dr. Asthana was the
first Advocate General of this Province. He is a profound lawyer,
distinguished educationist, having been the Vice-Chancellor of the
Agra University for a number of terms, and an important public
figure of this Province. Dr. Asthana, who is now 93, attends the
High Court regularly. The Bar Association is looking forward to
that day when it will be celebrating not only its own centenary
but also that of Dr. Asthana in the year 1974.
In concluding I would add that if only I were free to dwell
at length upon the roles which some of our members, who are happily
still in our midst— have played not only in the field of law and
administration of justice but also in the realm of political and
social affairs of the country, I am sure any impartial observer would
look upon our Bar with still greater veneration.
00 QQQQooq
^ 183 ^
Photograph of the Members of Aei ahaba,, H.gh Court Bar, taken in ig*o
WHEN Dr. T. B. Sapru made Law Member
Photouraph of ■•hie Mrmbfrs of iiik Advocates* Assoc a at ion, Ilicni Court, Ai.i \ii\ii\d. i \ki.n on iih. c><<
Diamond Jubii.kk of Practice vr ini- Bar oi- its Prisiih-ni, Dr. Narain Prasad Asihana, Ai-rii , 11)5
Members oi iiik Hk.ii Coiiri Bar
Members of the High Court Bar^ Allahabad,, 1966
Members of the High Court Bar, Am aii \b\i>.
Members of the High Court Bar, Ageaiiabai), 19(H)
Mkmhkks oi- Hic;ii Court Bar, Ai.i uiakah,
Sri K. L. Misra, Advocate General, U. P. and President of
Bar Council, U. P,
-v if*-
! 1
i i
1 1
f J
1 1 1 ':
PHOTOGRAPHS OF PAST PROMINENT MEMBERS
OF THE ALLAHABAD HIGH COURT BAR
Mlnshi H\nlman Prvs\d
Middle— Left to right
Maulvi Mehdi Hasan
Pandit Ajudhiyanath
B\bu Pe\rey Mom\ Bvnlrji
B. Satya Charan Mukerji
(1888)
Mr. B. E. O’Conor
(1893)
Pandit Madan Mohan Malviya
1
Top -Left to right
B. Durca Charan Banerji
(1885)
Munshi Ram Prasad
(1886)
Munshi Govind Prasad
(1886)
Top -Left to
Mr. A. E. Ry\es
(i893)
Dr. Svnsn Ciianda B\nerji
(1895)
Sir Tej Bahadur Sapru
(1896)
Munshi Haribans Sahai
(1896)
Dr. Sachchidananda Sinha
(1896)
Munshi Ishwar Saran
(1900)
Mr. Pearey Lal Banerji
(i9°7)
Sri P. D. Tondon
(1908)
Mr. A. P. Dubey
(1908)
Pt. J. L. Nei-iru
( 19 1 ?)
Mr. Surendra Nati-i Verma
Sri H. K. Ghosh 3 President Avadh Bar Association, High Court
(Lucknow Bench) Lucknow
History of the Court in Avadh from 1856 A, D.
up to Present Time
Compiled by
SRI H. K. GHOSE, Bar-at-Law
President , Avadh Bar Association ) Lucknow
BRIEF HISTORY OF OUDH
H TJDH was annexed to the territories of the British East India Company
by Lord Dalhousie, Governot General in 1856 ; and twelve districts :
Lucknow, Bara Banki, Faizabad, Sultanpur, Hardoi, Rae Bareli, Pratapgarh,
Unnao, Gonda, Bahraich, Sitapur and Kheri were constituted into a sepa-
rate Province of Oudh, under a Chief Commissioner. After some time
the Civil Administration of Avadh was united under one Local Govern-
ment with the districts administered by thfe Lt.-Govemor of the North-
Western Provinces ; and the territories thus united became known as the
North-Western Provinces and Oudh. Subsequently, by Act VII of 1902
passed by the Govemor-General-in-Council [United Provinces (Designa-
tion) Act], the designation - was changed into the United Provinces of
Agra and Oudh.
185
COURTS
Ever since the said Annexation, there were separate courts to admi-
nister the laws in Oudh (Avadh) and the laws were codified by Act
XVIII of 1876 (The Oudh Laws Act) passed by the Govemor-General-
in-Council. The Judiciary, including the highest court of appeal, was
distinct from courts of the sister province of the North-Western Provinces
and there were separate cadres of subordinate courts until the year 1948*
JUDICIAL COMMISSIONER’S COURT
After the Annexation, the highest court of appeal was established in
Lucknow in 1856 with a Judicial Commissioner for the disposal of Civil and
Criminal Cases. It continued to function for nearly 7 decades except for
a short interregnum during the Mutiny of 1857-58. At first there was one
Judicial Commissioner. At that unsettled time. Judicial Commissioner
was not the highest court of appeal in rent and revenue cases. But there
was a Financial Commissioner as the highest Court. By Act XXXII of
1871 the post of Financial Commissioner was abolished and his work was
entrusted to Judicial Commissioner of Oudh (Vide S. 84). The cases in
the Judicial Commissioner’s Court continued to increase. In order to cope
with the increasing volume of work, an Act (IV of 1885) was passed “to
provide for temporary” appointment, from time to time, of an “Additional
Judicial Commissioner”. Subsequently, by Act XIV of 1891 (Oudh
Gourts Act), provision was made by Section 4 for the appointment of a perma-
nent Additional Judicial Commissioner, equal in status but not in emolu-
ments to the Judicial Commissioner, by the Local Government with the
previous sanction of the Governor-General-in-Council. In 1897, another
Act (XVI of 1897) [Oudh Courts (Amending) Act] was passed, making
provision for the appointment of a 2nd Additional Judicial Commissioner.
The salary of the Judicial Commissioner was Rs.3,500 per mensem and
that of the Additional Judicial Commissioner, Rs. 3,3 3 3 per mensem.
In the Judicial Commissioner’s Court all the Judges, from the begin-
ning, were members of the Indian Civil Service, except Mr. R. T. Spankie,
Sir Edward Chamier, Sir Mohammad Rafique, Sir Sunder Lai and Sir
Wazir Hasan and Pt. G. N. Misra, officiating for a short time, who were
distinguished members of the Bar and Pt. Kanhaiya Lai who was a distin-
guished member of the Provincial Service and who later became a Judge of
Allahabad High Court.
CHIEF COURT OF OUDH
This system of Judicial administration was found inadequate and anti-
quated. So, in order to meet the public demand, an Act, U. P. Act IV of
1925 (Oudh Courts Act) was passed in 1925 by the U. P. Legislature with
the previous sanction of the Governor-General as required by sub-section (3)
of Section 80-A of the Government of India Act, 1919 “to amend and con-
solidate the law relating to courts in Oudh”. It abolished the earlier Oudh
Courts Act, and established a Chief Court for Oudh, with 5 Judges :
one Chief Judge and 4 puisne Judges. Out of 5 Judges two were members
of Indian Civil Service, one a member of the Provincial Judicial Service
and two were from the Bar. The Chief Court had original Civil Jurisdiction
for trial of suits having valuation of 5 lakhs and over under Section 7 of the
said Act. This was subsequently repealed by Act EX of 1939. There was
another change in the Act by modification of Section 4 of the said Act by
the Government of India (Adaptation of Indian Laws) Order, 1937, where-
under it was provided that “Chief Court shall consist of a Chief Judge and
such other Judges as may be appointed under the Government of India Act,
1935”. Under this provision a sixth Judge was appointed in 1945 from
I87
the Bar, who functioned up to amalgamation of the Chief Court with the
Allahabad High Court, by the United Provinces High Court (Amalga-
mation) Order, 1948, made by the Governor-General under Section 229 of
the Government of India Act, 1935. after presentation of an address by
both chambers of U. P. Legislature to the Governor of U. P. which was
submitted to the Governor-General. After amalgamation, the two separate
courts became one Court, by the name of “the High Court of Judicature
at Allahabad”. It was provided by a proviso to para 14 of the
Amalgamation Order that ‘‘such Judges of the new High Court, not less
than 2 in number, as the Chief Justice may, from time to time, nominate,
shall sit in Lucknow to dispose of cases arising in Oudh”. At present
there are seven Judges of the High Court stationed in Lucknow, with a
Senior Judge to deal with administrative matters of the Lucknow Bench.
The other Judges, including the Chief Justice, come to Lucknow for short
periods from time to time and such permanent Judges of the Lucknow
Bench go to Allahabad as and when nominated by the Chief Justice.
Before amalgamation, the Chief Judge of the Chief Court was paid a
salary of Rs.4,000, while puisne Judges, Rs.3,500 each, per mensem.
JUDGES FROM 1856-1925 (JUDICIAL COMMISSIONER’S
COURT)
The first Judicial Commissioner was Mr. M. C. Omanney. He died
on 5th July, 1857 and was succeeded by Mr. G. Campbell (afterwards Sir
George Campbell who later became Lt. -Governor of Bengal). He continued
up to 1862. He was succeeded by Sir George Couper (who afterwards
became Chief Commissioner of Avadh), who worked in 1862-63.
The next Judicial Commissioner whose name is traceable from the
records is Mr. W. C. Capper in 1870.
Mr. Charles Currie , i.c.s., was Judicial Commissioner from 1870—
1877. He was succeeded by Mr. W. C. Capper, i.c.s. who came in 1877
and worked up to 1881. The next Judicial Commissioner was Mr. W.
Young (who afterwards became a Judge of the Allahabad High Court). He
worked as Judicial Commissioner off and on from 1884, and 1886 — 1889
and again in 1890-1891- Mr. T. B. Tracy, 1. c. s., officiated in 1884-85
during the absence of Mr. Young. Another distinguished Judge Dr.W.Dutboit,
i.c.s., d.c.l. (who was a Judge of the Allahabad High Court for a while in
1881) was Judicial Commissioner from 1882 — 86.
Mr. John Dyson, i.c.s., was at first Additional Judicial Commis-
sioner when Mr. Young was Judicial Commissioner and officiated as Judi-
cial Commissioner in 1889-90. Mr. W. B. (afterwards Sir William Burkitt),
i.c.s. was Additional Judicial Commissioner in 1890-91 and Judicial
Commissioner in 1891—95. He then went to Allahabad High Court as
a Judge and was there up to 1908. Dr. M. S. Howell, ll.d., c.i.E., was
Additional Judicial Commissioner in 1891—93, when he became Judicial
Commissioner and continued up to 1896. In 1892 Mr. G. T. Spankie
a Barrister practising in Lucknow was appointed an Additional Judicial
Commissioner. This was the first appointment from the Bar. Mr. Spankie
was in the Court up to 1903, after becoming Judicial Commissioner in 1895.
Mr. H. F. Evans, 1, c. $., was an Additional Judicial Commissioner in
1893. Mr. William Blennerbassett, i.c.s. was an Additional Judicial
Commissioner in 1896 and Judicial Commissioner in 1897-98. Mr. John
Deas ; i.c.s., was Additional Judicial Commissioner and later Judicial Com-
missioner between 1894—1900. In 1898 Mr. E. M. D. (afterwards Sir
Edward Cbamier ) a distinguished Barrister practising in Lucknow, was
appointed II Additional Judicial Commissioner. He later became Judi-
cial Commissioner in 1904 and was in Lucknow Court up to 1911 when
he went to Allahabad High Court as a Judge and later became a Chief
Justice of the Patna High Court and after retirement therefrom became the
189
Solicitor and Legal Adviser to the Secretary of State for India in Council
in London. Mr. Ross Scott, i. c. s., was appointed 2nd Additional Judi-
cial Commissioner in 1895 and ultimately became Judicial Commissioner
and retired in 1907. Mr. Mcleod \ 1. c. s., officiated as Judicial Commis-
sioner in 1901-1902. Mr. Wells , i.c.s., was Additional Judicial Com-
missioner in 1904-1905. Mr. Ryves, Barrister, practising at Allahabad was
an Additional Judicial Commissioner in 1905. He afterwards became a
Judge of the Calcutta, Lahore and Allahabad High Courts. Mr. H. D.
(afterwards Sir Henry ) Griffins, i.c.s., was an Additional Judicial Com-
missioner in 1907-1908 and later became a Judge of the Allahabad High
Court, where he was up to 1914. Mr. Sanders, i.c.s., was Additional Judi-
cial Commissioner in 1907. Mr. L. C. Evans, i.c.s., was Additional
Judicial Commissioner and later Judicial Commissioner from 1906— -1911.
Mr. B. Greeven, i.c.s., was Additional Judicial Commissioner in 1907-
1908. Dr. Sir Sunder Lai, C.I.E., an eminent lawyer of Allahabad was
appointed an Additional Judicial Commissioner in 1909. Mr. W.
(afterwards Sir William ) Tudhall, i.c.s., was Additional Judicial Com-
missioner in 1909 and later he went as a Judge to the Allahabad High Court
where he was up to 1922. Mr. T. (afterwards Sir Theodore ) Piggott, i.c.s.,
was Additional Judicial Commissioner in 1908 and later became Judicial
Commissioner. In 1914 he became a Judge of the Allahabad High Court.
Mr. Rafique (afterwards Sir Mohd. Rafique), Barrister-at-law, became
an Additional Judicial Commissioner in 1911 after serving as Civil and
District Judge (by direct appointment) for a few years in Oudh and in 1912
went to Allahabad High Court as a Judge. After retirement in
1923, he was appointed a member of the Council of the Secretary of State
for India in London. Mr. B. (afterwards Sir Benjamin) Lindsay, i.c.s.,
was Additional Judicial Commissioner in 1910 and later became Judicial
Commissioner up to 1921, when he went to Allahabad High Court and
retired in 1923. After retirement he became a Reader of Law in Oxford
190
University. Pt. Kanbaiya Lai, brother of Dr. Sir Sunder Lai was the first
member of the Provincial Judicial Service to be appointed an Additional
Judicial Commissioner in 1912 and after serving in the Lucknow Court
up to 1924, as Additional Judicial Commissioner and officiating Judicial
Commissioner went to Allahabad High Court and retired in 1926. Mr.
L. Stuart (afterwards Sir Louis Stuart ), i.c.s., was successively Additional
Judicial Commissioner and Judicial Commissioner up to 1922, when he
went to Allahabad High Court, but returned to Lucknow as the first Chief
Judge of the Chief Court in 1925 and retired in 1930. Mr. Sabonodiere,
i.c.s. was an Additional Judicial Commissioner in 1913. Mr. S. Mohammad
Ali, i.c.s., was an Additional Judicial Commissioner in 1915-1916. Mr.
E. A. Kendall, i.c.s., officiated as an Additional Judicial Commissioner
in 1916. Mr. S. R. Daniels, i.c.s., was an Additional Judicial Com-
missioner and later Judicial Commissioner from 1916 — 1925, when he went
to Allahabad, wherefrom he retired in 1928. Mr. D. R. Lyle, i.c.s., was
Additional Judicial Commissioner in 1919 — 1922. Mr. E. H. Asbwarth,
I.C.S., was Additional Judicial Commissioner in 1919 and again from 1922,
and later became one of the first Judges of the Chief Court and thereafter
went to Allahabad High Court as a Judge. Mr. B. (afterwards Sir Barjor)
Dalai , i.c.s., was an Additional Judicial Commissioner from 1920 and
was the last Judicial Commissioner of Oudh, and went to Allahabad in
1925 and retired therefrom in 1931. After retirement he became Chief
Justice of the Kashmir High Court. Mr. Wazir Hasan (afterwards Sir
Wazir Hasan ) a distinguished member of the Oudh Bar was the first member
of the Oudh Bar to be appointed an Additional Judicial Commissioner in
1921, continued up to the establishment of the Chief Court when he became
one of its first Judges. He became Chief Judge of the Chief Court in 1930
and retired in 1934. Mr. Simpson , i.c.s., was an Additional Judicial Com-
missioner^in 1922 — 1925. Mr. E. R. Neat/e, i.c.s., was an Additional Judicial
Commissioner in 1922—1925. He officiated as a Judge of Allahabad High
191 .-^g-
Court in 1924. Mr. C. H. B. (afterwards Sir Charles ) Kendall, i.c.s., was
an Additional Judicial Commissioner in 1924 and later became a Judge
of the Chief Court up to 1929 when he went to Allahabad High Court
and was there up to 1935 when he was killed in a motor accident on the way
to Naini Tal. Pt. Gokaran Nath Misra, an eminent Advocate of the Oudh
Bar, officiated as an Additional Judicial Commissioner in 1925. He was one
of the first Judges of the Chief Court after its establishment in the same year.
Mr. A. G. P. Pulhrt, i.c.s. , officiated as an Additional Judicial Commissioner
in 1924. Subsequently he became a Judge of the Chief Court.
JUDGES : (CHIEF COURT OF OUDH , NOVEMBER 1925-48)
First Judges
1. Hon’ble Sir Louis Stuart, i.c.s., Kt., First Chief Judge, November
1925, retired on 12th February, 1930.
2. Hon’ble Sir Wazir Hasan, (formerly Additional Judicial Com-
missioner) officiated as Chief Judge in 1929 and became Chief Judge in 1930,
retired on 14th May, 1934.
3. Hon’ble Mr. E. H. Ashworth, 1. c. s., (formerly Additional
Judicial Commissioner) subsequently Judge of Allahabad High Court from
1926—39.
4. Hon’ble Pt. Gokaran Nath Misra, Advocate, formerly officiat-
ing Additional Judicial Commissioner, 1925, died on 5th July, 1929.
5. Hon’ble Mr. Mohammad Raza, p.c.s., 1925, retired on 18th Janu-
ary, 1934-
6. Hon’ble Mr. Justice C. H. B. Kendall (afterwards Sir Charles
Kendall), 1926.
7. Hon’ble Mr. Justice C. Moss King (afterwards Sir Carleton
“Moss King), i.c.s., c.i.e., from 9th October, 1926 to 4th May, 1927 when
he went to Allahabad, but returned as Chief Judge in 1934 and retired in
1936 .
8. Hon’ble Mr. Justice A. G. P. Pullan, i.c.s., officiated in January
1928 and again from 28th October, 1928, again in 1929 when he was made
permanent. In 1931 he went to Allahabad and then retired in 1933.
9. Hon’ble Mr. Justice E. M. Nanavutty, i.c.s., officiated in 1928,
and again in 1929, became permanent Judge from 19th December, 1930,
retired in 1937.
10. Hon’ble Mr. Justice Bisheshwar Nath Srivastava, o. B. e., an
Advocate (officiated from July to October, 1928), permanent Judge from
19th July, 1928 after the death of Hon’ble Mr. Justice G. N. Misra,
became Chief Judge after Sir Carleton Moss King in 1936 and died in July,
1938.
11. Hon’ble Mr. Justice B. S. Kisch, i.c.s. (officiated from 21st Janu-
ary, 1931 and again from 1st January, 1932 to 1st October, 1932.
12. Hon’ble Mr. Justice Smith, i.c.s. (officiated from 21st October,
1931, again from 10th October, 1932 to December 31, 1932, 1933, again in
1934-35. again Judge of Oudh Chief Court 1936-37, died on 18th December,
1937 -
13. Hon’ble Mr. Justice J. J.W. Allsop, i.c.s., officiated 1933 — 35 -
14. Hon’ble Mr. Justice Rachhpal Singh, Barrister-at-law, officiated
in 1934, later went to Allahabad High Court, after retirement therefrom
went to Kashmir as a Judge of High Court.
15. Hon’ble Mr. Justice G. H. (afterwards Sir George) Thomas,
Barrister-at-law, formerly first Government Advocate of Chief Court,
from May, 1934, later became Chief Judge after the death of Sri B. N. Sri-
vastava on 23rd July, 1935 and retired 22nd June, 1946.
16. Hon’ble Mr. Justice Ziaul Hasan (a member of the Provincial
Judicial Service) from 30th July, 1934. officiated as Chief Judge from 12th
July to nth August, 1939, retired on 16th December, 1940.
17. Hon’ble Ml. Justice A. H. De, B. Hamilton, i.c.s. (1937— 40).
18. Hon’ble Mr. Justice W. Y. Madeley, i.c.s. (i937—4^)-
19. Hon’ble Mr. Justice R. L. Yorke, i.c.s. (1938), officiated as Chief
Judge from 25th February, 194 1 t0 I2t ^ March, 194 1 an< ^ ^ ater wcnt t( >
Allahabad High Court.
20. Hon’ble Mr. Justice J. R. W. Bennett, i.c.s. (1939—44). re-
tired in 1947 from Allahabad.
21. Hon’ble Mr. Justice Radha Krishan Srivastava, an Advocate,
a member of the Oudh Bar from July, 1939, died on 12th May, 1940.
22. Hon’ble Mr. Justice Ghulam Hasan, a member of the Oudh
Bar from September, 1940, and later became a Chief Judge on 23rd June,
1940, became a Judge of the High Court after amalgamation. After retire-
ment in May, 1951, became a Judge of the Supreme Court.
23. Hon’ble Mr. Justice P. C. Agarwal, p.c.s., (16th November, 1940
to 10th May, 1943)-
24. Hon’ble Mr. Justice L. S. Misra, (14th May, 1943) acting
as Chief Judge in September-October, 1947. became a Judge of the Allah-
abad High Court on 28th July, 1948 and later went as Chief Justice of Hyder-
abad High Court.
25. Hon’ble Mr. Justice P. K. Kaul, P.C.S. , formerly member of
the Oudh Bar but joined Judicial Service ; appointed on 4th December,
1944, became a Judge of the Allahabad High Court on amalgamation on
28th July, 1948, retired therefrom and later became Chief Justice of Madhya
Bharat High Court.
26. Hon’ble Mr. Justice H. G. Walford, Barrister-at-law, Addi-
tional Judge from 12th July, 1946 to 28th July, 1948.
27. Hon’ble Mr. Justice M. H. Kidwai, Barrister-at-law, appointed
Judge on 12th July, 1948, became Judge of the Allahabad High Court
on amalgamation on 28th July, 1948, was in Lucknow as Senior Judge
until his death in Court on 19th February, 1957.
28. Hon’ble Mr. Justice Raghubar Dayal, i.c.s., Acting Judge
from 28th March, 1946, afterwards Judge of the Allahabad High Court and
of the Supreme Court.
29. Hon’ble Mr. Justice S. B. Chandiramani, I.C.S., July 1947,
afterwards Judge of Allahabad High Court on amalgamation, died on 21st
May, 1952.
LAW REPORTS
(Cases Decided by the Avadh Court)
As the history of the Court is not complete without reference to reports
of cases decided by the Judges of the Court, a short note of the Law Reports
published in Lucknow is necessary. Originally there were no authorised
law reports as contemplated by the Indian Law Reports Act, 1876, of cases
decided by the Court of the Judicial Commissioner. But the decisions
of Judicial Commissioners and Financial Commissioners were published
with their approval as “Select Cases”. Considering that the Case-law and
precedents were not as numerous as it is today, the exposition of law in some
of these cases is very good, and many of them had been approved by the
Privy Council. Of course there were some very eminent lawyers who assist-
ed the Courts with their learned arguments. We may remember that the
Judicial Commissioner and the Financial Commissioner were not trained
lawyers, but members of the Indian Civil Service, even though some of them
got called in the Bar in England and two were doctors of law. Therefore,
the outturn of their work at that time is very creditable. Amongst the Finan-
cial Commissioners whose decisions are contained in the “Select Cases” two
distinguished members who left their mark, are Mr. R. H. Davis and Col.
L. Barrow.
Oudh Cases
The first authorised report of the cases decided by the Court of Judicial
Commissioner was published in 1898 under the nomenclature of "Oudh
195
Cases” published with the authority of the Judicial Commissioner, and it
was continued up to the establishment of the Chief Court in 1925. The
first Editor (then styled Reporter) was the distinguished lawyer and public
man Pandit Bishan Narain Dar, Barrister-at-law, who was later assisted by
Shri (later Sir) Bisheshwar Nath Srivastava (afterwards Chief Judge of
the Chief Court). The latter continued the work as Chief Reporter after
the death of Pandit Bishan Narain Dar in 1916, assisted by Junior lawyers
amongst whom the name of Pandit P. K. Kaul, who afterwards became
a Judge of the Chief Court and High Court may be mentioned.
O. LJ.
There were other unauthorised reports during this period ; “Oudh Law
Journal” (O. L. J.) from 1914—1926 with St. George Jackson, Barrister-
at-law, President of the Oudh Bar Association and Pandit Gokaran Nath
Misra (afterwards Hon’ble G. N. Misra, Judge of the Chief Court) as editors.
This Journal stopped publication after the establishment of the Chief
Court.
O. W. N.
Oudh Weekly Notes (O. W. N.) with the late Mr. A. P. Sen, Presi-
dent of the Oudh Bar Association, as Editor and Chaudhari Hyder Husain,
Barrister-at-law, the present President of the same association as Joint Editor
were published from 1924. After the death of Mr. A. P. Sen, in 1934,
Chaudhari Hyder Husain became Chief Editor and continued the publication
up to the amalgamation of the Chief Court with the High Court at Allah-
abad. Both these publications (O. L. J. and O.W. N.) rendered very valu-
able assistance to the Bar and Bench, as they published decisions earlier than
the authorised reports “Oudh Cases” and sometimes gave arguments of counsel
in the cases reported. They also published decisions of the Board of Revenue
and Privy Council. They also had notes and comments of cases decided by
196
the Court and statutes and articles on important questions of law, and refe-
rences to Judges on their elevation and retirement, and obituary notes on
Judges and lawyers.
0 . & A. L. R.
There was a third Law Journal, “Oudh and Agra Law Reporter”
(Abbreviation O. L. R.) in 9 volumes, published by a retired member of
the Judicial Service who joined the Bar, Mr. H. C. Sen. After his death,
the publication ceased.
1. L- R., Lucknow
After the establishment of the Chief Court, the official reports “I. L. R.
Lucknow Series” were published from 1925-26. To this publication Indian
Law Reports Act, 1876 was made applicable by amendment of Section 2 by
adding “Chief Court of Oudh” after the High Court by A. O.
There was a Committee of Law Reporting headed by a Judge of the
said Court with 4 nominated members of the Bar, whose approval was neces-
sary before publication of a decision. There was an editor appointed by the
Court. One of the Editors was the late Mr. Justice Ghulam Hasan.
After the amalgamation of the two Courts I. L. R., Lucknow Series
have ceased, but there is a special reporter for the Lucknow Bench of the
Court.
SPECIAL LAW ADMINISTERED IN OUDH AND SOME
ILLUSTRATIVE CASES
The Court of Judicial Commissioner, Chief Court and the courts
subordinate to them had to decide one class of cases which is unique in the
whole of India, viz. cases of succession, etc. arising under the Oudh Estates
Act, 1869 (popularly known as Taluqa cases).
197
The history and back ground of the system of Taluqdari is given in
a classical work “Compendium of Law specially relating to Taluqdars of
Oudh” by Mr. J. G. W. Sykes, LL.B., Barrister-at-law, a distinguished
practitioner in the court of Judicial Commissioner in the early days, which
can be referred to and studied by persons interested. It may briefly be stated
that after the reoccupation of Oudh by the British in 1858, after the Mutiny,
the policy of the British administrators was to create a class of landholders
like the Barons in England on the nucleus of landlords under the Kings
and Nawabs of Oudh who would be their bulwark against the peasants,
whom they considered undependable by their recent experience, as the peasants
readily joined the Mutiny. After the Mutiny Lord Canning the British
Governor-General by his proclamation dated 15th March, 1858, confiscated the
proprietary soil in Oudh to the British Government except 6 estates specifically
mentioned, viz. Balrampur, Katiari, Padnaha, Sissendi, Gopalkhera
and Moraon (Baiswara) who were rewarded for their “Loyalty” during the
Mutiny. Thereafter summary settlement was made as an act of pacification
between 1st April, 1858 and 10th May, 1859 by granting Taluqdari Sanads,
to persons who laid down their arms and showed contrition, on the terms and
conditions therein stated. But the position of tenantry remained precarious
and most of them were tenants at will of the landlords. Ultimately in 1869
the Oudh Estates Act (I of 1869) was passed “to define the rights of Taluqdars
and others, in certain estates in Oudh (including those which were
excluded from confiscation proclamation of Lord Canning hereinbefore
mentioned)” and to regulate their succession thereto. This Act made special
provisions for succession (e.g. single heir and primogeniture, exclusion of
women, adoption, will, transfer, etc.). Even in the case of succession by eldest
son, preference was given to the son who is najibultaraf ain (of good family
on both sides) an instance whereof will be given below. This Act proved a
veritable apple of discord like the proverbial Pandora’s Box and gave rise to
a plethora of litigation and hardly any estate in Oudh escaped expensive
litigation. In some instances there was more than one litigation after
the opening of succession by the death of the last male holder. The Act was
so badly drafted that it was often difficult to interpret its provisions. A
large number of cases went to Privy Council. The reports of numerous
cases both in the Privy Council and in the Courts of Oudh from the earliest
times demonstrate the difficulty of interpreting and of giving effect to the pro-
visions of this Act.
In the days of Judicial Commissioners, Special Judges were appointed
from the ranks of Senior members of the Provincial Judicial Service for trial
of the Taluqa cases, which often lasted years, involving heavy expenses, as
often senior and eminent members of the Bar of Oudh and from outside
were engaged. In order to simplify the procedure and curtail the time and
expenses, Oudh Courts Act, 1925, made provision for trial of these Taluqa
cases (which always involved property worth more than 5 lacs) on the original
side. After the abolition of the original side in 1939 these cases reverted back
to the jurisdiction of Civil Judges as before. One of the last cases, if not
the very last, was Sissendi Taluqa case tried by Mr. P. K. Kaul (afterwards
Mr. Justice Kaul of the Chief Court and High Court).
SOME NOTABLE CASES
(1) UNDER THE OUDH ESTATES ACT
Kbwaja Ahmacl Khan vs. Musammat Hurmuzi Khanam and others
( 8.0 . L. J. 27), decided hy B. L. Lindsay, J. C. and S.R. Daniels t A. J. C. in
1920, on appeal from the judgment of S. Mohammad Raza (afterwards Hon*hle
Raza,J. of the Chief Court).
This case illustrates the difficulties of interpretation of the provisions
relating to succession to the “Estate”, as sometimes quaint expressions were
used. In this case a younger son of a deceased Taluqdar Mohammad Ahmad
Khan, who had 8 wives and a numerous progeny claimed the property in
preference to the other older sons of the deceased, on the ground that he
was the eldest najibultarafain son of his father in preference to other sons of
the deceased older than him as they were not qualified to take the estate as
heir under the Oudh Estates Act not being najibultarafain. In this case
the question was what is najihultarif, which literally means noble ancestry
of both the parents. Evidence was led that mothers of the other older sons
of the deceased, could not claim unbroken noble ancestry of the same status
as Mohammad Ahmad Khan. There was a large volume of evidence and
S. Mohammad Raza (who afterwards became a Judge of the Chief Court)
dismissed the suit. The appeal was heard by a Bench consisting of Sir
Benjamin Lindsay one of the most distinguished Judges of the Court and Mr.
Daneils. Mr. A. P. Sen who with H. K. Ghose and Syed Zahur Ahmad
appeared for the Plaintiff- Appellant argued that if there was any taint of
inferior status on either side he would not be najibultarafain. Mr.
Gokaran Nath Misra and Mr. Bisheshwar Nath, both of them afterwards
distinguished Judges of the Chief Court, assisted by other lawyers argued
for the respondents. The Court held that “Najibultarafain” meant
persons of good family on both sides.
(2) SISSENDI TALUQA CASE
Chandra Kishore Temri and others vs. D. C., Lucknow in charge of Court
of Wards, Sissendi Estate and Vijai Kumar.
L. R. 76 I. A. 17 —On Appeal from A. I. R. 1947 Oudh 180.
This case presents many unique features as (a) the Estate is one of the
6 estates exempted from Lord Canning’s Confiscation Proclamation, after
the Mutiny, (b) another feature not uncommon elsewhere, is, that it
was financed litigation by impecunious reversionary claimants to the Taluqa
when succession was opened, (c) historic significance, as it was the last case
under the Oudh Estates Act filed in the Chief Court but tried before a
Special Civil Judge, after the abolition of the original side of the Chief
200
Court, (d) the last case conducted by the great lawyer Rt. Honble Sir Tej
Bahadur Sapru.
The litigation started by a suit filed on October 7, 1937, by two sons
of the brother of Raja Kashi Prasad, the first Taluqdar of Sissendi,with whom
summary settlement was made after the Annexation of Oudh and whose
name was entered in lists 1, 2 and 5 prepared under section 8 of the Oudh
Estates Act, after the death of Rani Subhadra Kumari, widow of Raja
Chandra Sekhar, the adopted son of Raja Kashi Prasad, which took place
on November 13, 1934* Normally the plaintiffs would have been entitled
to the properties, the elder brother to the Taluqa and both the brothers to
other properties moveable and immoveable. But Rani Subhadra Kumari
before her death adopted Vijay Kumar, a grandson of her brother on July
14, 1929 under “the consent in writing” which was necessary for adoption
under the provisions of Oudh Estates Act, though not under the Hindu Law.
This consent was alleged to have been given to her by Raja Chandra Sekhar
who separated from her early in their married life, in 3 letters in 1889. The
plaintiffs challenged the validity of the adoption on the ground that the Raja
Chandra Sekhar whose relationship with his wife was bitter and who was
of unsound mind, did not give his consent, far less “consent in writing”
and the three letters of 1889 were spurious and manufactured. As the plain-
tiffs had no money, they transferred a portion of the properties in the name
of Parbati Devi, mother of a senior leading lawyer of Bara Banki in consi-
deration of an agreement to finance the litigation. This lady died and the said
lawyer carried on the litigation as a party. The suit was filed in the original
side of the Chief Court and issues were framed by Hon’ble Hamilton, J. But
when the original side was abolished by Act IX of 1939, the case was trans-
ferred to the court of Mr. P. K. Kaul (afterwards Mr. Justice Kaul) then
additional Civil Judge, Lucknow. The case was hotly contested by the
Court of Wards which was in charge of the property since 1897, when the
Raja was found to be of unsound mind. Vijaya Kumar, the adopted son,
201 -d&e
was also a party. There were protracted hearings and eminent lawyers like
Sir Tej Bahadur Sapru and Dr. K. N. Katju, represented the Court of
Wards. Mass of evidence, documentary and oral including 2 handwriting
experts were produced on both sides. Mr. Kaul by his judgment dated
March 21, 1940 decreed plaintiff’s suit holding that there was estrangement
between the Raja and the Rani 2 or 3 years after their marriage, which
continued throughout his life and it was highly improbable that the Raja
wrote the 3 letters to adopt to the Rani and therefore, the adoption was in-
valid for want of “consent in writing”. The defendants’ appeal was first
heard by a Bench consisting of Hon’ble C. Hasan andWalford, JJ. before
Sir Tej Bahadur Sapru assisted by Pandit S. K. Dar, H. K. Ghose
(Government Advocate) and others argued the appeal on behalf of defend-
ants-appellants and Mr. Wasin (afterwards Advocate General of U. P.
and Pakistan) assisted by Mr. M. H. Qidwai (afterwards Kidwai, J.) and
K. P. Misra and others argued on behalf of plaintiffs-respondents. There was
a difference of opinion, Hasan, J. being for dismissal of appeal, Walford,
J. in favour of allowing the appeal and hence Full Bench was constituted
under S. 13 (2)(6) of the Oudh Courts Act, 1925. As no independent
judge was available to constitute a Full Bench, the Chief Judge (Hon’ble
Thomas, J.) constituted a Full Bench with himself and the said 2 judges.
Before the Full Bench Sir Tej Bahadur Sapru was not available on account of
illness. So Shri S. K. Dar argued on behalf of the appellants and the same
counsel appeared for the respondents as before. Hon’ble C. J. agreed with
Walford, J. in his dissentient judgment and the appeal was allowed and plain-
tiffs’ suit dismissed in accordance with their opinion, on May 10, 1946,
though Hasan, J. still adhered to his earlier opinion. The plaintiffs filed
an appeal before the Privy Council. The appeal was argued twice. After
the first argument their Lordships on July 28, 1948, modified the decree of
the Chief Court by directing defendants to deliver 4 items of property to
plaintiffs with mesne profits, though they accepted the opinion of Chief
Judge and Walford, J. on material points and remitted the case to Chief Court
for determination of mesne profits. After further arguments on February i,
1949 their Lordships modified their earlier order allowing more villages
to plain tiffs, and costs and moveable properties and some promissory notes.
The result was that plaintiffs’ claim to Taluqdari was dismissed, but their
claim to other immoveable and moveable properties was allowed. The
dispute is still going on in execution proceedings.
The most important Civil Case of far reaching importance on the
tenantry in U. P. particularly of Oudh is what is generally known as
“Tenancy Act Case”.
(3) TENANCY ACT CASE
Jagannath Bux Singh versus The United Provinces L. R. 73 1 . P. 123.
[1947 O.W. N. 70 (P. C. ) on appeal from 1944 O.W.N. 15. F. C.]
Plaintiff Jagannath Bux Singh who was a Taluqdar of the District of
Sultanpur instituted a suit in the Court of Civil Judge, Sultanpur as a test
case to challenge the validity of the U. P. Tenancy Act, 1939, or at
least certain provisions numbering 4 2, which repealed Oudh Kent Act,
1876 and Agra Tenancy Act, 1901 which heretofore regulated the relations
between landlord and tenant. The plaintiff was a Taluqdar governed by
the Oudh Estates Act, his estate being entered into no. 241 in List no. 1
and 108 of list 2 of lists prepared under section 8 of the said Act, whose estate
according to the custom of the family devolved on a single heir. He was
a direct descendant of Babu Sitla Bux Singh, who obtained a Sanad from
the Governor-General, after the Mutiny granting full proprietary, perma-
nent and heritable rights to the properties conferred by the Sanad. The
plaintiff alleged that the provisions of the Act which inter alia granted herit-
able and transferable rights to the tenants in Oudh, derogated from the
rights conferred on him and other Taluqdars who obtained estates under
the Sanads with absolute rights and hence it was beyond the competence
of the U. P. Legislature to make laws curtailing their rights. The suit was
t M. 203
was
withdrawn to the Chief Court in its original Civil Jurisdiction and
tried by Hon’ble Madeley, J. SirWazir Hasan (who resumed practice after
retirement) with Sri Shekhar Saran appeared for plaintiff. Dr. N. P. Asthana,
Advocate-General of U. P. and H. K. Ghose, Government Advocate and
Standing Counsel represented the State of U. P. Hon’ble Madeley, J. repelled
the contention and dismissed plaintiff’s suit for declaration in a very lucid
and exhaustive judgment. Plaintiff appealed to the Federal Court of India
then in existence, on the ground that it involved substantial question of
law of interpretation of the Act. Mr. P. L.‘ Banerji who later became
Advocate-General of U. P. and Mr. M. H. Qidwai (who later became a
judge of the Chief Court and High Court) appeared for the plaintiff-
appellant and the same counsel who represented the State before the trial
Court appeared before the Federal Court. Hon ble Sir Maurice Gwyer,
C. J., Vatadachariar and Zafrullah Khan, JJ. by their very learned judg-
ment dismissed the appeal on April 22, 1943 (vide 1944 W * N - * 5 )*
The plaintiff was undaunted by his failure in 2 Courts and took the case
to Privy Council by obtaining leave from the Federal Court. He had no
better luck there and judgments of the Chief Court and Federal Court were
upheld by the Privy Council on May 1, 1946 (vide 1947 O. W. N. 70) :
L. R 73 I. A. 123).
CRIMINAL CASES
(I) Revolutionary Conspiracy Case
Ram Prasad and others versus K. Emp. (known as Kakori train dacoity and
conspiraq case).
Lucknow cases 339- I. L. R. 1 Lucknow
In this case 24 persons were prosecuted under section 121-A, I. P. C.
and section 120-B, I. P. C. for conspiracy to end British rule in India and
under section 396, I. P. C. for committing dacoities to raise money for for-
therance of their design. These decoities were 4 in number, viz. (i)
at Bamrauli in the district of Pilibhit in the Christmas night 1924 (Decem-
ber 25, 1924), in the house of a prosperous money-lender and Sugar Factory
owner in the course of which a wrestler who challenged them was shot dead,
(ii) at Bichpuri also in the district of Pilibhit in the house of a rich Kurmi
on March 9, 1925 in which one person was killed, (iii) at Dwarkapur
in the district of Pratapgarh on May 25, 1925 in the house of a Vaish, in
which a villager lost his life, (iv) the most sensational train dacoity on
August 9, 1925 after 7 p.m. on a train (8 Down) of the East Indian Kailway
(now Northern Railway) proceeding towards Lucknow, after it left Kakori
Railway Station 8 miles from Lucknow, near the distant signal when the
train was stopped by some one pulling the communication cord of alarm
signal and some persons got out of the train, overpowered the. Guard and
called upon the passengers not to stir out as their property would not be looted,
and no harm would come to them for they were out take “Government
Property”, they then broke open the safe in the brake van, maintained a
fusillade of shots which hit and killed a lawyer Ahmad Ali, who left the.
carriage inspite of the warning and the attackers got away withRs. 4,553-3-6
as from the safe. After the train dacoity the Government became
suspicious of a conspiracy as the arms and ammunitions found at the various
scenes of occurrence were similar and as train hold up was unusual. Inves-
tigation entrusted to a very experienced and highly placed officer of C. I. D.
revealed that there was a widespread conspiracy of educated people mostly
young and some teenagers and students who formed a revolutionary party
“to establish Federal Republic of the United States of India by organised
and armed revolution”. They collected arms and ammunitions, committed
dacoities to raise funds for the purpose and printed and distributed pamphlets
appealing to their countrymen to rise against the British and drive them
out. Amongst the papers seized was a pamphlet pointing out official terro-
rism and another pamphlet containing the prospectus and constitution of
the Hindustan Republic Association and rules and regulations for whole
of India. Out of tire persons arrested, of the first batch, one was
discharged by the committing Magistrate and 21 were committed to Sessions
and tried by Mr. Hamilton (afterwards Honble Hamilton, J.) who was
appointed Special Judge. Subsequently two others, Ashfaqullah and
Sachindra Nath Bakshi, were arrested and tried in a supplementary trial by
Mr. J. R. W. Bennett, Sessions Judge, Lucknow (subsequently Hon’ble
Bennett, J). In the main case after protracted trial of about 8 months,
Mr. Hamilton by his judgment on April 6 , 1927 acquitted two persons,
convicted 18 under sections 121-A and 120-B, I. P. C. and 9 of these also
under section 396 I. P. C. and sentenced 3, Ramprasad Bismil, Rajendra
Nath Lahiri and Raushan Singh, leaders to death and 15 to various terms
of imprisonment. One person was invalidated and his trial postponed.
15 of the convicted persons appealed to Chief Court, out of whom one did
not press his appeal. Government applied for enhancement of sentences of
6 out of 15, who were given lesser sentences. In the Supplementary trial
Mr. Bennett by his judgment convicted both the accused and sentenced
Ashfaqullah to death and Sachindra Nath Bakshi to transportation for life.
Ashfaqullah filed appeal, but Sachindra Nath Bakshi did not. The two
appeals and reference for confirmation and application for enhancement
were heard contemporaneously one after the other. Government took keen
interest and engaged the eminent lawyer Pt. Jagat Narain, to conduct the
prosecution in the trial court and in appeal in the main case, Sri C. B. Gupta
(recently Chief Minister of U. P. ) and Sri H. N. Misra, took interest
throughout in the case, and appeared for undefended accused. In the
Chief Court Sri B. C. Chatterji distinguished Barrister of Calcutta High
Court appeared forRoshan Singh with Dr. J. N. Misra, Mr. John Jackon
for Prem Kishan, Sri L. S. Misra, was appointed to appear for Ram
Kishan, Mr. H. C. Dutt with C. B. Gupta for Rajendra Nath Lahiri
and other counsel for other accused. The appeal was heard by a Bench
consisting of Sir Louis Stuart, C. J. and Raza, J., who by their lengthy
judgment dated August n, 1927 upheld the findings about conspiracy and
dacoities in both the cases, confirmed the sentences of death of 4 persons,
enhanced the sentences of Jogesh Chandra Chatlerji (now an M. P.), Suresh
Chandra Bhattacharji, Vishun Saran Dublis, Govind Charan Kar and
Pranavesh Kumar Chatterji. Some of the accused after their release, became
prominent citizens of free India.
(2) Satyagraba and Non-co-operation Case
Oudh Bar Association, Lucknow in re-K. Ernp. versus Mohan Lai Saxena,
C. B. Gupta and others {1930) 7 O. W. N. 893.
In this case, Sri C. B. Gupta, Mohan Lai Saxena, Dr. Lakshmi
Sahai, Harish Chandra Bajpai, Jai Dayal Awasthi, Shyam Sunder Nigam,
Imtiaz Ahmad, Asharfi and Shyam Sunder Qaisar, all prominent citizens
of Lucknow were prosecuted under section 117, I. P. C. read with section
9 of the Indian Salt Act for mass incitement to break the law relating to res-
triction for manufacture of salt. The accused were members of the Congress
and carried out agitation against Salt Act initiated by Mahatma Gandhi.
They were convicted and sentenced to 18 months’ R. I. each by a Magis-
trate 1 st Class, Lucknow on April 14, 1930. In accordance with their
principles none of these 9 persons either defended themselves before the
Magistrate nor filed any appeal or revision against their conviction and sen-
tences. Messrs. C. B. Gupta and Mohan Lai Saxena were members of
the Oudh Bar Association. So the Oudh Bar Association “in the dis-
charge of their duty to watch and protect the privilege and liberty of
its members” filed an application under section 439, Cr« P. C. for revision
of the order of conviction and sentences through its President Mr. St. George
Jackson assisted by Mr. R. F. Bahadurji and others on the grounds that
conviction under section 117, I. P. C. is illegal and there was no evidence
207 *£&*
to prove the offence under section 9 of the Salt Act. H. K. Ghose,
Government Advocate opposed the revision application on the grounds inter
alia (a) that Oudh Bar Association had no locus standi, (b) the application
being barred by section 439 (5), Cr. P. C. as the convicted persons did not
appeal and (c) conviction under section 117, I. P. C. is legal. The revision
was heard by a Bench consisting of Hon’ble Sir Wazir Hasan, C. J. and
Puilan, J. who in a very erudite judgment overruled the objections of the
Government Advocate and held that the conviction under section 117
I. P. C. is illegal and set aside the conviction of all the 8 persons even though
6 of them did not apply, but upheld the conviction under section 9 (e) of
the Indian Salt Act and reduced their sentence to 6 months’ R. I.
(3) Biksia Murder Case
State versus B. B. Singh and others.
L. R. 73 I. A.p. 1 : 1964 O.W.N. 71— B. B. Singh versus K. Bmp.
This case created the greatest sensation of the century throughout India
as Mr. B. B. Singh a highly placed member of the Indian Civil Service
was charged under section 302 I. P. C., of murder of a pretty young woman
named Bilasia, who came with his wife, as a maid servant (Bandi) according
to the custom in the family and was living in his house in Lucknow, by
giving her a merciless beating on May 26, 1943 at about 7.30 p.m.
when on his return from office in U. P. Secretariat, it was reported to him
that she was found in a compromising position with his bearer Samuel and
he flew into a fit of rage and gave her the beating which caused her death ;
and under section 201 I. P. C. for taking her corpse after midnight when
he found after his return from a dinner where he went after the beating that
she was dead by putting the corpse in the boot of his car driven by his
chauffeur to a village Ram Garh Gularia in Sitapur District, 60 miles from
Lucknow where Bhanwar Singh his wife’s sister’s husband lived and dis-
posing of the corpse by dismembering it and scattering the bones in the
jungle with the help of Bhanwar Singh and his servant and 2 pasis who
were also charged under section 201 I. P. C. Next morning another
I. C. S. officer Mr. Misra who shared the Bungalow with Mr. Singh re-
ported the matter to Mr. Mudie, the Chief Secretary of U. P. Government,
that Bilasia was given a severe beating and had disappeared. The Chief
Secretary after some enquiry entrusted the investigation to 2 highly placed
and experienced members of the Special Branch of Police. They took
the statements of witnesses including 2 ayahs of Mr. Singh who stated about
beating and chauffeur Mahabir who deposed about midnight journey in
the car to Bhanwar Singh’s village. They visited the house of Bhanwar
Singh but did not find Bilasia and with the help of villagers recovered some
bones which were later assembled and proved by an expert to be those of
Bilasia. As the investigating officers apprehended that a good deal of pres-
sure would be placed on witnesses who were menials and dependants of
the accused, they got their statements recorded under section 164. Sub-
sequent events justified their action as they all resiled from their statements
and Mahabir was produced with great difficulty, as he played a game of
hide and seek. Mr. Singh admitted a slight beating and a blow on the back
when she tried to run away as he was very angry and as she was guilty of
similar conduct previously, he insisted on his wife getting rid of her and
when he found after his return home at midnight after dinner in which he
took a few drinks that Bilasia was still in the house he was very much
annoyed and insisted on himself taking her to the house of Bhanwar Singh
where Bilasia's cousin Basanti was a Bandi, and took her in the car with his
wife, there was a puncture in the car in the way, so he left Mahabir to repair
the puncture and went in a passing bullock cart to Bhanwar Singh’s house
with his wife and Bilasia and after leaving them there he returned to the
place of puncture and was driven back to Lucknow. It was suggested on
behalf of Mr. Singh that Bilasia disappeared from the house of Bhanwar
209
Singh when she went to attend the call of nature in the jungle. The case
was tried by the Sessions Judge of Lucknow (a very senior member of
I. C. S.). Mr. Hoon leading Barrister of Kanpur prosecuted and Dr. K.N.
Katju assisted by other senior lawyers defended. Case under section 302
I. P. C. was triable by the judge with assessors but the case under section
201 I. P. C. with a jury, an anomalous provision of law. After protracted
trial the jury found the accused not fully guilty under section 201 I. P. C.
The same gentlemen acted as assessors. The learned Judge did not agree
with the verdict of the jury and made a reference to the Chief Court under
section 307 Cr. P. C. On the charge relating to the death of Bilasia, the
learned Judge found Mr. Singh guilty under section 304 I. P. C. para 2,
and sentenced him to 6 years’ R. I. by his order of January 10, 1944. Mr.
Singh filed an appeal against his conviction and sentence. The
appeal and reference under section 307 Cr. P. C. were heard by a Bench
consisting of Hon. Thomas, C. J. and Gulam Hasan, J. The protracted
arguments lasting over two weeks, were reported at length in all the papers
in India. A galaxy of eminent lawyers led byRt. Hon’ble Sir Tej Bahadur
Sapru and Dr. K. N. Katju both of whom addressed the court assisted by
Mr. R. F. Bahadurji and other lawyers, two of them later became judges
of the High Court, represented Mr. Singh, Bhanwar Singh and others were
represented by Pt. Shridhar Misra. Mr. H. K. Ghose, Govermment Advo-
cate appeared for the State. The Hon’ble Judges differed from the trial court
in their view of the evidence and held that the jury’s verdict was not perverse
and rejected the reference under section 307 Cr. P. C. with respect to offence
under section 201 I. P. C. and acquitted the accused. They maintained
the conviction of Mr. Singh under section 304 I. P. C. but reduced
the sentence to the period already undergone, a leniency. Mr. Singh filed
the appeal to the Privy Council and their lordships set aside the conviction,
as their lordship held that statements under section 164 Cr. P. C. cannot
be used as substamive evidence and though the evidence and admitted facts.
210 ^
including false reasons given by Mr. Singh for midnight motor journey created
a suspicion against him, it could not be the basis of conviction.
This case is a tragedy and illustrates the difficulties of the prosecution
to prove beyond doubt the guilt of an affluent accused backed by powerful
influences. It may be noted Mr. Singh was later reinstated by the Govern-
ment after the judgment of Privy Council and was posted as Labour Com-
missioner at Kanpur where he committed suicide.
(4) State versus Sri Hari Dai Mundhra
The most notorious case which created great sensation all over India
and abroad in the years 1958 and 1959 was the trial of a Marwari adven-
turer named Hari Das Mundhra of Calcutta who secured shares and control
in various companies through speculation and manipulations in the share
market Calcutta and was supposed to have become a multi-millionaire, but
met his Waterloo in Lucknow, in a ease of cheating and forgery.
The brief facts of the case in which Mundhra was convicted in
Lucknow are as follows :
The British India Corporation is a huge business combine of several
industrial companies, which were originally financed and managed mainly
by Europeans, but latterly Indian businessmen acquired shares and shared
in the management. Kanpur Cotton Mills was one of constituent busi-
ness concerns of the British India Corporation. In 1957 there was a financial
crisis in the B. I. C. It was, therefore, proposed to relieve the crisis by selling
cloth lying unsold in Kanpur Cotton Mills partly for cash and partly for
credit. Hari Das Mundhra, who managed to, acquire a large number of
shares and got himself elected as Chairman of the Board of Directors,
exploited the situation. He dishonestly represented to Shri W. H. J. Christie,
the Managing Director of the B. I. C., that one Manik Chand Bagri of
Calcutta was willing to purchase cloth worth R.s.7 lakhs on payment of 3 J
211
lakhs in cash and furnishing security for the balance. In fact, Sri Hari Das
Mundhra gave a letter purporting to be on behalf of Sri Manik Chand Bagri
agreeing to purchase the cloth on the above terms and he also deposited 95
shares of a firm Richardson and Cruddas Co., and 86 transfer deeds in
lieu of security for the balance of the price amounting to Rs.3| lakhs.
Believing that the shares and the transfer deeds were genuine, Sri Christie
accepted the proposal and cloth worth Ks.7 lakhs was sold from the Kanpur
Cotton Mills in the name of Sri Bagri. Sri Mundhra managed to dis-
honestly appropriate the entire cloth worth Rs. 7 lakhs to himself. Sub-
sequently it turned out that the letter which purported to bear the signature
of Sri Bagri was forged and the shares and the transfer deeds were also
not genuine. The shares were in fact forged duplicate copies of the original
shares which were already pledged with a Bank at Calcutta.
When facts became known, the case was entrusted for investigation to
S. P. E. After thorough investigation the S. P. E., Lucknow submitted
a charge-sheet against Mundhra in court of Sri Maharaj Singh, Addi-
tional District Magistrate (Judicial), Lucknow for inquiry before
commitment to Sessions. Before the Committing Magistrate various
attempts were made, by filing bail applications and raising ingenious pleas
about jurisdiction of the Lucknow Court with the object of delaying the
proceedings so that Sri Christie, the key witness in the case, who was about
to retire and leave India might not be available to give evidence. Astute
lawyer like the late Sri G. G. Chatterji, a leading criminal practitioner of
Lucknow, was engaged before the Committing Magistrate. The late Sri
P . R. Das an ex-Judge of Patna and leading lawyer of all- India repute
was engaged by Mundhra for his bail application. However, all these
attempts failed and Mundhra was ultimately committed to Sessions for trial
on charges under sections 420, 467/471 I. P. C. Sri R. A. Misra (now
Hon’ble Misra, J.) an eminent Advocate, who successfully conducted the
prosecution of Tahsildar Singh, son of the notorious Man Singh in Meerut
212
was appointed special counsel for the S. P. E. to conduct the prosecution
of Mundhra and he appeared before the Committing Magistrate and Sessions.
The Sessions Trial was held before Sri B. B. Misra, Additional Sessions
Judge, Lucknow (now Registrar of the Allahabad High Court). The
trial was protracted. Sri B. C. Sen, a former State Counsel of the Govern-
ment of Bengal assisted by Sri Babu Ram Gir defended the accused
Mundhra. Sri R. A. Misra conducted the prosecution and argued the
case, but before the conclusion of the case he was raised to the Bench of the
Allahabad High Court. Sri B. C. Sen continued his argument.
The learned Judge (Sri B. B. Misra), found the accused Mundhra
guilty of all the charges and convicted him and sentenced him under section
420 I. P. C. to undergo R. I. for 4 years and pay a fine ofRs.2 lakhs in
default to undergo further S. I. for 1 year and under section 467 read with
section 471 sentenced him to undergo R. I. for six years, the sentences to
run concurrently. Hari Das Mundhra filed an appeal against his conviction
and sentence in the Lucknow Bench of the Allahabad High Court. The
appeal was heard by Hon’ble Jagdish Sahai, J., in the Lucknow Bench,
Lucknow. The appeal was argued by Sri N. C. Chatterji an ex-
Judge of the Calcutta High Court and seniormost Advocate of the
Supreme Court assisted by Sri B. N. Mulla and Sri Babu Ram Gir appeared
for Mundhra in appeal in the High Court. The Hon*ble Judge upheld
the conviction and maintained the sentence under section 420 I. P. C. but
reduced the substantive sentence of imprisonment under sections 467/471
I. P. C. to 4 years* R. I. to run concurrently with the sentence of impri-
sonment under section 420 I. P. C.
Mundhra later applied for a certificate of fitness to appeal to the
Supreme Court in the High Court and also for special leave before the
Supreme Court but failed.
There were several other cases against Mundhra in Kanpur and Cal-
cutta of which some are still pending in Calcutta courts.
215
BAIL
Oudh had a galaxy of eminent lawyers ever since the establishment of
the Courts of Judicial Commissioner and Financial Commissioner in 1856.
In the earliest days when there were not many law graduates, permission was
given by the Judicial Commissioner to applicants after some test to practise
law. In those days leading legal practitioners were Europeans, though there
was no paucity of Indian practitioners. Before 1926, there were 3 categories of
lawyers. Advocates, Vakils and Pleaders. Barristers were enrolled as Advocates
of the Allahabad High Court, Vakils were also enrolled in the said Court
from amongst Pleaders. Some eminent Vakils were made advocates by the
Court in recognition of their merit. Names and short accounts of the pro-
minent members of the Bar will be given below. However, Bar did not
have any organised place until the turn of the century. After the construc-
tion of new court-building, the Oudh Bar Association was allotted two rooms
for its Library and use by lawyers practising in the Court of Judicial Com-
missioner. About the same time the Bar Association was organised without
any distinction of race, or category of lawyers. Mr. St. George Jackson, Barris-
ter-at-law was the first Secretary. The second Secretary was Shri Basudeo
Lai a highly respected Vakil. In 1925, the Bar Association was reorganised
with Mr. St. George Jackson as first President and Pt. Gokaran Nath Misra
(afterwards Honble Mr. Justice Misra), as Secretary. The Oudh Bar Asso-
ciation is a registered body under Act XX of i860, and has at present 160
members including 3 ladies, an Ex-Chief Justice, an Ex- Ambassador and
2 Ex-Ministers of Government.
Ever since the door was opened for the elevation of legal practitioners
to the Bench more than a score of members of the Oudh Bar occupied the
position of Judges of the High Courts including Judicial Commissioner’s
Court. Their names are given below, though some of them have been
named earlier :
214
(a) Judicial Commissioner's Court , Chief Court and High Court, Allahabad.
1. C. T. Spankie, Barrister-at-law (1882-C).
2. Sir Edward Chamier (1898-C), Barrister-at-law.
3. Sir Mohammad Rafique, Barrister-at-law (1911).
4. Sir Wazir Hasan (1921 — 1934), Advocate.
5. Pt. Gokaran Nath Misra, Advocate (1925 — 1929).
<5. Sir Bisheshar Nath Srivastava, Advocate.
7. Sir George Thomas, Barrister-at-law.
8. Mr. Rachhpal Singh, Barrister-at-law, also of Allahabad
High Court and later Kashmir High Court.
9. Mr. Ghulam Hasan, Advocate, also of Allahabad High Court,
later Judge of the Supreme Court of India.
10. Mr. P. K. Kaul, Vakil promoted from P.C.S. and later Judge
of High Court and subsequently Chief Justice of Madhya Pradesh,
High Court.
11. Mr. Radha Krishna Srivastava, Advocate.
12. Mr. L. S. Misra, Barrister-at-law, Chief Court and later
High Court and subsequently Chief Justice of Hyderabad High Court.
13. Mr. M. H. Qidwai, Barrister-at-law, also of Allahabad
High Court.
14. Mr. H. G. Walfbrd, Barrister-at-law.
(i) High Court of Allahabad .
15. Mr. Tej Narain Mulla, Vakil (later in Judicial Service).
16. Chaudhari Niamat Ullah, Advocate, officiated as Chief
Justice.
17. Mr. A. N. Mulla, Advocate.
18. Mr. Nasirullah Beg (formerly Government Advocate at Luck-
now and now the Chief Justice of the Allahabad High Court).
19. Mr. Ram Asrey Misra, Advocate.
20. Mr. Uma Shanker Srivastava.
215
(r) Other High Courts.
21. Mirza Samiulla Beg, Chief Justice, Hyderabad High Court
and later President of H. E. H. Nizam’s Privy Council.
22. Dr. Naziruddin, ll.d., Barrister-at-law, Judge of Hyder-
abad High Court.
SOME DISTINGUISHED MEMBERS OF THE OUDH BAR
1. Mr. Jackson, an Englishman came out to India before the
Mutiny. After the Mutiny when the Court of Judicial Commissioner
was established, he applied for permission to practise law, which was easily
granted in those unsettled times. Though he had no previous training he
acquired remarkable command of law and appeared in many important
cases including Taluqa cases (e.g. S. C. 222, first Singha Chanda Case). It
is said that he was responsible for amendment of the Treasure Trove Act
for when he was reconstructing his old residence in Qaiserbagh he recovered
some money from a demolished wall of the house and refused to hand it
over to Government under the Treasure Trove Act, as it was not “embedded
in the bowels of earth”. He fought and won the case against Government.
He amassed a huge fortune and built a palatial building for his residence
which still stands on the south of Wingfield Park.
2 . Mr. J. G, W. Sykes, ll.b., Barrister-at-law. — He was contem-
porary of old Mr. Jackson. Though he died fairly young he has left his
permanent imprint on Oudh laws relating to land tenures by his masterly
and erudite work “Compendium of law specially relating to Taluqdars of
Oudh”, which has been referred to and used in many reported cases even
by the Privy Council, and Federal Court of India (e.g. in Tenancy Act case).
3. Mr. J.W. Arathoon, Barrister-at-law. — Armenian by race, prac-
tised in the Court of Judicial Commissioner and had an extensive practice
in cases of importance. He later went to England and set up practice in
the Privy Council, where he appeared in almost all the cases from Oudh
for one side or the other, as will appear from the law reports, Indian appeals.
He took “silk” and became a K. C.
4. Mr. Syed Mahmood — He was the son of Sir Syed Ahmad,
the founder of the Aligarh Anglo Oriental College which has now become
a University. He went to England with his father at an early age. He
joined Lincoln’s Inn, London, and was called to the Bar by the said Inn
on the 30th of April, 1872. After a few years’ practice he entered Judicial
Service and was for some time a District and Sessions Judge at Kae Bareli.
He was appointed an officiating Judge of the Allahabad High Court first
in 1883 and again in 1885 and he became a permanent Judge of the High
Court in the year 1887, and as such he was the first Indian to be appointed
a Judge of the Allahabad High Court. He retired early after six years on
the Bench in 1893. He was a great jurist and during the short term of his
office he left judgments which are classic, full of erudition and research.
His interpretations of law in cases decided by him, both civil and criminal,
are masterpieces. After his retirement from the Bench he came to Lucknow
and settled down to practise in the court of the Judicial Commissioner of
Oudh and appeared in many important cases in the said Court. He had
a large consultation practice. People from all over Northern India used
to come to him for consultation and opinion in cases involving intricate
questions of law and fact. After some time in Lucknow, he went to Sitapur
for reasons of health and for comparative quietness. He was a scholar in
English, Persian, Arabic and Sanskrit. He was a Fellow of the Calcutta
and Allahabad Universities— He died at an early age.
5. Mr. F. G. D. Lincoln, Barrister. He had his connection in Oudh.
His father’s name is remembered in connection with survey and Settlement
in Oudh after the Mutiny. He was called to the Bar by the Middle Temple
on 7th May, 1879, was enrolled as advocate in Allahabad but set up his
practice in Lucknow. He gave up his practice about 1916-1917 as he
became interested in business. He was the owner of two leading hotels' —
Carlton in Lucknow and Savoy in Mussoorie .
6 . Mr. L. Degruyther, K.c., Barrister-at-law, the most distinguished
member of the Oudh Bar. He was called to the Bar on 17th June, 1885
by the Middle Temple, London. He returned to Lucknow where he was
probably bom, and set up his practice in the Court of the Judicial Com-
missioner. He went to England and set up practice in the Privy Council
and for nearly 4 decades, appeared in almost all the cases from Oudh and
numerous cases from all over India and became a legendary personality. He
took ‘silk’ and became a K. C. His sudden death considerably disturbed the
cause list of the Privy Council. He was greatly mourned in England and
India. In his early days of practice in England he was Reader of Hindu
and Mahomedan Law in the Inns of Court. He was a Master (Bencher)
of the Middle Temple.
7. Mr. S. Nabiullah, Barrister-at-law, was called to the Bar by the
Lincolns Inn on 17th June, 1885. He took part in civic affairs and was
the first non-official Chairman of the Lucknow Municipality.
8. Sir Mohammad Rafiq, Barrister-at-law, was called to the Bar by
the Middle Temple, London on 26th January, 1886 and was enrolled in
the High Court at Allahabad as an Advocate but was a member of the
Oudh Bar and practised in Lucknow. He later entered Judicial Service
and rose to the position of an Additional Judicial Commissioner of Oudh
in i9ii and was appointed a Judge of the Allahabad High Court in 1912.
After his retirement in 1923, he was appointed a member of the Council of
the Secretary of State for India, in recognition of his judicial acumen.
9. Pt. Bishan Narain Dar, Barrister-at-law, was called to the Bar by
the Middle Temple on 26th January, 1887. He rendered very useful service
to the Bar by the publication of authorised reports of decisions of the Court
of Judicial Commissioner in “Oudh Case” from 1898 to 1916 when he
died. He took great interest in the Congress of those days and presided over
the session of the Indian National Congress held in Calcutta in 1912.
io. Sir Edward Chamier, was called to the Bar by the Lincoln’s Inn,
London, on 17th November, 1887. He was appointed second Additional
Commissioner of Oudh in 1898 and rose to be the Judicial Commissioner
and then went to Allahabad High Court from where he went to Patna as
the first Chief Justice of the Patna High Court. After retirement he was
appointed Solicitor and Legal Adviser to the Secretary of State for India in
Council, London.
11. Mr. St. George Jackson, Barrister-at-law, was called to the Bar
by the Lincoln’s Inn on 19th November, 1888 and joined the Bar in Lucknow.
He was the first Secretary of Oudh Bar Association when it was organised
in 1898 and in 1925 became its first President on reorganisation, when the
body had a President. He was also the President of the Oudh Bar Council
from its establishment in 1925 under the Bar Council Act until his death
on 31st July, 1931. He left a very useful compilation, Oudh Privy Council
decision of 259 cases from 1864 — 1913 in collaboration with Sir Mohammad
Rafique. He was the founder editor of Oudh Law Journal with
Pt. Gokarannath Misra. He was the President of Boy Scout and Girl Guide
Associations, U. P.
12. Mr. John Jackson, was called to the Bar by the Lincoln’s Inn,
London on 17th November, 1890 and joined the Oudh Bar. He was a
successful lawyer and was engaged as special counsel in many cases by the
Government and Court of Wards, both in Lucknow and outside. He re-
tired from the profession on completion of 50 years’ practice, when the Bar
celebrated his Golden Jubilee, as token of the respect he commanded, the
first Golden Jubilee, of any member of the Oudh Bar.
13. Mr. R. G. F. Jacob, Barrister-at-law, was called to the Bar by
the Middle Temple on 20th January, 1893. He died fairly young,
but left his mark by publication of a commentary on the Oudh Estates Act
in 1903, necessitated by the passing of Oudh Settled Estates Act in 1900.
He also wrote a useful commentary of the U. P. Land Revenue Act.
i 4 Mr. A. P. Sen, Barrister-at-law, humanitarian, was born in Dacca
now in East Pakistan and had his early education there and College Education
in the Presidency College, Calcutta. After graduation he went to England
and was called to the Bar by the Middle Temple on 26th January, 1895. On
return to India he was enrolled in the Calcutta High Court as an Advocate
and practised there as a Junior to Rt. Hon’ble S. P. Sinha (Lord Sinha).
In 1902 he came to and settled down in Lucknow and in no time he acquired
an extensive practice in civil, criminal and revenue cases. He was the
founder Editor of the useful law Report “Oudh Weekly Notes" and was
also a sponsor of “Allahabad Law Journal”. He was one of the founders
of the Lucknow University in which there is a Hall named after him. Luck-
now Municipal Board, of which he was a prominent member, has commemo-
rated his memory by naming a road after him. One of his juniors the late
Mr. Justice Kidwai became an eminent Judge. The Oudh Bar Associa-
tion has got his portrait in the Library. He left his entire assets to religious,
social, charitable and educational institutions in and out of Lucknow,
including 2 orphanages, one a Hindu and another a Muslim, in Lucknow.
15. Mr. R. F. Bahadurji, was called to the Bar by the Middle Temple
London on 26th June, 1895. He came to Lucknow in 1901, and set up his
practice. The Bar celebrated the Golden Jubilee of 50 years of his service to
law. He had the unique distinction of triple crown thrust on him, viz. Presi-
dentship of Oudh Bar Association, and Chairman of the Oudh Bar Council
and Presidentship of the U. P. Lawyers’ Conference. He died in August,
1951. He appeared for a batch of I. N. A. Officers tried in Red Fort, New
Delhi, without receiving any fee, at the request of Pandit Jawaharlal Nehru.
16. Mr. Mumtaz Husain, Barrister-at-law, was called to the Bar by
the Gray’s Inn London on 1st May, 1901 and set up his practice in Lucknow.
Mr. Mumtaz Husain was a philanthropic person and established an orpha-
nage, which bears his name and which has been rendering valuable service
to the orphans, teaching handicrafts and giving literary instruction.
220
17- Chaudhry Hyder Husain M. A. (Oxon.), Bar-at-la\v — He was
born in Garhi Bhilwai, district Bara Banki, Oudh. His first education was
in the Church Mission School, Lucknow. After Matriculation he en-
tered the Canning College, Lucknow. Later on he went to M. A. O.
College, Aligarh. Thereafter he went to England for further studies and
entered St. Catherine’s College, Oxford, where he took honours in Juris-
prudence. He was thus a B. C. L. of Oxford. He was called to the Bar
by the Hon’ble Society of Lincoln’s Inn, London on June 24, 1913. On
his return to India after call to the Bar he got himself enrolled in the High
Court at Allahabad but he preferred to set up his practice in Lucknow.
He had his first training with Mirza Sami Ullah Beg Saheb. When Mirza
Sami Ullah Beg left for Hyderabad as Chief Justice of Nizam’s High Court
in 1918, he worked as junior to the late Mr. A. P. Sen. In the meantime
he picked up a good independent practice and in time he got into a very
lucrative practice which increased year after year. He appeared in many
important cases under the Oudh Estates Act (Taluqdari Law) both
in the original side of the Chief Court and in the appellate side of the then
Judicial Commissioner’s Court and the Chief Court of Oudh. He was
a Reader in the Faculty of Law in the Lucknow University from its incep-
tion in 1921 up to 1934. He was member of the Courts of the Lucknow
and Aligarh Universities. He entered public life without neglecting his
work as a legal practitioner. He was a member of the then Legislative
Assembly of U. P. representing Rae Bareli Constituency from 1937 until
the dissolution of the Assembly. He was a member of the Constituent
Assembly for framing the Constitution of India and later became member
of the Lok Sabha from 1952 to 1957. Though he went to the Legislatures
with the backing of Congress, he was independent and did not allow his
activities to be circumscribed by party politics. As a member of the Lok
Sabha, he went to China with the Parliamentary delegation headed by the
then Speaker Sri Ananta Swami Ayengar. He was selected as a member
221
of Parliamentary Delegation which went to Russia but he could not avail
of the opportunity due to serious illness of his wife who unfortunately
died shortly after. He was connected with many educational, social, cultural
and political associations either as a member, office bearer or President. In
fact he was connected with almost every liberal association, social, political
or cultural. He was President of the school for the Blind, Lucknow. He
was a very generous man and contributed liberally to charitable and edu-
cational institutions without any discrimination of caste, creed and colour.
He was a founder member of the Rotary Club, Lucknow whereof he later
became the President. He also became the Governor of the area wherein
Lucknow is situate. As a Rotary Governor he attended the Rotary Inter-
national mee ting at Sen Fransisco, U. S. A. He followed the ideal of
Rotary “service above self” literally. He was a prominent member of the
Avadh Bar Association, Lucknow and was its Vice-President for some time
and after the death of Chowdhari Niamat Ullah in 1961 he was unani-
mously elected President— a position which he occupied until his death
on July 24, 1966. He had a genial personality, was good friend and a good
patriot. Lucknow Bar celebrated his Golden Jubilee on the completion
of his fifty years’ practice in the bar at a dinner, attended by His Excell-
ency the Governor Sri Bishwanath Das, the Chief Minister, U. P. and
die Judges of the High Court, and many other distinguished citizens.
18. Shaikh Shahid Husain, was called to the Bar by the Middle
Temple, London on 24th June, 1903. He joined the Oudh Bar and soon
got into a very good practice. He was Taluqdar of Gadia. He took in-
terest in moderate political activities and was a member of the Legislature in
U. P. and Centre under the old regime.
19. Mr. Mohammad Wasim, Barrister-at-law, was called to the Bar
by the Lincoln’s Inn, London on 27th January, 1908. After return to India
he joined the Oudh Bar and soon acquired a very lucrative practice. He
was appointed Advocate General of U. P. after Dr. N. P. Asthana. After
partition of India, he migrated to Pakistan where he became Attorney General
of Pakistan and went to U. N. O. as a member of Pakistan Government
Delegation. He died in Pakistan.
20. Dr. Jaikarannath Misra, m.a., ll.d. (Dublin), Barrister-at-law,
was called to the Bar by the Inner Temple in 1916. On return, was enrolled
in the High Court at Allahabad in 1917 and worked as junior to the emi-
nent jurist Dr. Sunder Lai and had a thorough grounding in Civil Law.
In 1920 he came to his home town Lucknow and set up his practice. He
died on 5th October, 1943 suddenly after arguing a very difficult criminal
appeal (Ganj Moradabad Case).
21. Mr. L. S. Misra, m.a.. Barrister-at-law, was bom in 1895. He
was called to the Bar by the Inner Temple in 1919. On return, he was enrolled
in Judicial Commissioner’s Court in 1920. He was appointed a Judge
of the Chief Court in May, 1943 and on amalgamation of the two Courts he
became a Judge of the amalgamated High Court and was a senior Judge of
the Lucknow Bench, when he was appointed Chief Justice of the Hyder-
abad High Court. After retirement he got himself enrolled as a senior
Advocate of the Supreme Court. He was a member of the Law Commis-
sion for some time.
22. Mr. M. H. Kidwai, was called to the Bar by the Middle Temple
at the age of 21 and was enrolled as an Advocate of the Allahabad High
Court. In 1921 he joined Oudh Bar. He was legal adviser to the British
Indian Association, the organisation of the landlords in Oudh and took a
prominent part in drafting the U. P. Tenancy Act, 1939. He made a spe-
cial study of the Taluqdari Law and Land Tenures in U. P. He was
appointed a Judge of the Chief Court in 1946 and after amalgamation, he
became a Judge of the amalgamated High Court and was later a senior Judge
of the Lucknow Bench. He died on the Bench, while hearing the arguments
of Sir Iqbal Ahmad in a difficult criminal case.
23* Mr. H. G. Waiford, Barrister-at-law, was called to the Bar by
the Middle Temple on 26th January, 1926 and joined the Oudh Bar in the
Chief Court the same year. He was appointed as an additional Judge of
the Chief Court in July, 1945 and worked as a Judge until the amalgama-
tion of the Chief Court with the Allahabad High Court. He, thereafter
resumed his practice in the Bar and appeared in many important cases and
the Sensational Case against some Razakars in Hyderabad. He was inva-
lided and was taken to England where he died.
24. Munshi Kali Prasad, was one - of the oldest and highly respected
members of the Oudh Bar, a contemporary of old Mr. Jackson and Sykes.
He had extensive practice and earned a lot of money, without amassing a
fortune for himself, as he was very charitable and gave his money freely, parti-
cularly to poor students. He was the founder of the Kayastha Pathshala
College, Allahabad and bequeathed all his property in trust “Kayastha Edu-
cation Trust” for the benefit of the said Kayastha Pathshala and for helping
poor students.
25. Hon’ble Sri Ram, was a member of the Viceroy’s Legislative
Council before the Government of India Act, 1915. He also worked as
Government Pleader of Oudh in the Court of the Judicial Commissioner
for civil, criminal and miscellaneous work for Government and Court of
Wards. He died literally in harness as he expired in the court of Judicial
Commissioner, in the midst of his argument. He amassed a big fortune.
He was interested in the poor orphans and founded an orphanage in Lucknow
named after him.
26. Babu Basudeo Lai, an extremely able and clear-headed civil lawyer
who had extensive practice in the Court of Judicial Commissioner. He
was a highly respected member of the Bar and was elected Secretary of the
Oudh Bar Association after Mr. St. George Jackson.
27. Mr. Mohd. Naseem, was the first Vakil to be made an advocate
of the Judicial Commissioner’s Court.
28. Mirza Samiullah Beg, the nonagenarian venerable old man who
has the unique satisfaction of seeing two of his sons on the Bench, Mr. Justice
Nasirullah Beg and Mr. Justice Hamidullah Beg. He was one of the 4
vakils who were made Advocates by Sir Benjamin Lindsay, then Judicial
Commissioner in 1914. He was highly esteemed by the Bench, Bar and
the public, and would have been the first Indian Member of the Oudh Bar,
who is not a Barrister to be appointed an Additional Judicial Commissioner,
with future prospects. But he chose to accept the tempting offer of the Chief
Justiceship of the Hyderabad (Nizam’s) High Court. In Hyderabad,
he later became President of H. E. H.’s Privy Council and was con-
ferred the title of Mirza Yar Jung. Subsequently he became die Judicial
Minister and then the Agent of H. E. H. the Nizam in Berar. Before
he went to Hyderabad he was connected with every progressive movement
in Lucknow and was General Secretary of the Reception Committee of the
Session of the Indian National Congress, held in Lucknow in 19x6. He
was a Municipal Commissioner, Lucknow. He was also a member of the
Senate, Allahabad University, and a member of the Legislature, U. P.
29. Pandit Jagat Narain— -The greatest Criminal Lawyer in U. P.
and one of the most prominent citizens of India, in his time. He has dis-
tinction of having two of his sons raised to the Bench (oneHon’bleTej Narain
Mulla), during his life time, the other Hon’ble A, N. Mulla, the poet,
after his death. He was appointed a member of the Rowlett Commission ap-
pointed after Jallianwala Bagh Massacre and Punjab Riots. The whole of
India was thrilled by his searching cross-examination of the officials, whose
statements were recorded by the Commission. He was thoroughly independent
and firm in his views and did not hesitate to express it, even if he was
the only one in the minority. He was a prominent member of the Oudh
Bar Association and sometime its Vice-President. For his distinction, the
British Government conferred the title of Rai Bahadur, without consulting
him and when he saw the notification in the papers, he promptly refused it.
An incident in the Court in this connection is worth mentioning. On the
225 *££* >
day the notification about the honour was published, he was appearing in
the Court in a case before Sir Benjamin Lindsay, the most distinguished
Judicial Commissioner, who like other Judges, had great esteem for him, and
Sir Benjamin Lindsay congratulated him, which made Panditji blush and
he said “Sir, I have refused it”. His end came suddenly in 1938 in the midst
of a game of chess, of which t he was fond, in a friend s house. His death
was mourned all over the country.
30. Mr. E. Manual— An Anglo-Indian Pleader in the Court of
Judicial Commissioner, who had good practice in Civil and Criminal
Cases and acquired a reputation for legal acumen. He was a respected
member of the Oudh Bar Association. He took interest in Civic affairs
and was a member of the Lucknow Municipal Board.
31. Babu Ram Chandra— A Civil Lawyer, was one of the 4 vakils
who were made advocates by Sir Benjamin Lindsay, Judicial Commissioner,
in 1914.
32. Pandit Gokaran Nath Misra— Who was also made an Advocate
in 1914, was also a Civil Practitioner and was a sound lawyer and a good
Advocate. He officiated as an Additional Judicial Commissioner in 1925 and
was one of the first 4 puisne Judges of the Chief Court, established in 1925.
Unfortunately he died early on 5th July, 1929, but left his mark in some
reported Cases, both Civil and Criminal. He was an active member of the
Bar and was its Secretary for sometime. There is a road in Lucknow named
after him. He was associated with many political and social organisations.
Lucknow Mahila Vidyalaya College owes its foundation to him. He was
a Congressman of the old School and was a Secretary of the Reception Com-
mittee of the Congress Session in Lucknow in 1916. He was one of the
founders of the Lucknow University and was in its executive until his death.
33 * SirWazir Hasan — One of the most brilliant Advocates and the
distinguished Judge of the Oudh Court. He took his LL.B. Degree from
the Allahabad University. He started practice in his home town of
Jaunpur and later went to Pratapgarh and thereafter came to Lucknow and in
no time acquired a very lucrative practice. He was one of the four Vakils
to be made Advocates of the Judicial Commissioner’s Court in 1914. He
was appointed Second Additional Judicial Commissioner in 1921, being
the first Indian Member of the Oudh Bar who was not a Barrister to be raised
to the Bench. He was one of the Puisne Judges of the Chief Court, after its
inauguration in 1925. He became Chief Judge of the Chief Court in 1950
and retired in 1934. He was knighted in 1932 being the first Indian Member
of the Oudh Bar to receive the honour for his services in the Lucknow Court.
After retirement he resumed practice and appeared in some important cases.
His son Syed Ali Zaheer is now a Minister of Law and Justice in U. P.
34. Sir Bisheshwar Nath Srivastava — Commenced his practice in
Lucknow as a Lawyer in 1902. In 1918, he was made an advocate of the
Judicial Commissioner’s Court. He became a member of the Oudh Bar
Council after its establishment and remained its member until he was raised
to the Bench. He was also a Secretary of the Oudh Bar Association. In
July 1928, he officiated as a Judge of the Chief Court and in July the following
year he was appointed a permanent Judge, after the premature demise
of Pt. Gokaran Nath Misra. He officiated as Chief Judge of the Chief
Court first in 1934 and again in July 1936 and was made permanent in July
1937, after the retirement of Sir Carleton Moss King. He was a prominent mem-
ber of the Lucknow University and was in its executive until his death. He
was a member of the Lucknow Municipal Board and sometime its Chairman.
He was a Chairman of the Lucknow Improvement Trust and rendered very
valuable service to the City, in recognition of which Government conferred
the distinction of O. B. E. on him.
35. Chaudhari Niamatullah— He set up his practice in Faizabad,
where he became a leader of the Bar. In 1928 he was appointed a Judge
of the Allahabad High Court, being the first member of the Oudh Bar to
be directly appointed to the said Court. He acted as Chief Justice of the
Allahabad High Court before his retirement on 7th December, 1937. He
was offered a Judgeship of the Privy Council, but he declined and preferred
to revert to Bar in Lucknow. He was appointed a member of the Committee,
appointed by the Government of India, to enquire into the conditions
in N. W. F. P. and its suitability for reforms. His report was so forthright
and independent that the Government did not publish it and withheld the
knighthood which was usually conferred on Senior Judges of the High
Court, who attained the position of the Chief Justice. The Kas hmi r anc J
Banaras States appointed him a Judge of their Judicial Committees with
other distinguished retired Judges. He regained his large practice in the
Bar on resumption of his practice and became a leader. After the death of
Mr. Bahadurji, the Oudh Bar Association unanimously elected him its
President, which position he held until his death.
36. Sri Radhakrishna Srivastava had his home in Kakori, district
Lucknow and was educated in Lucknow. He passed LL.B. Examination
from the Allahabad University and commenced practice in Pratapgarh in
1913. He was appointed an Additional Judge of the Chief Court in 1939
and would have been made permanent but for his death within a year.
37. Mr. Ghulam Hasan, graduated in law from Aligarh University
and commenced his practice in Hardoi, but after a while he shifted to
Lucknow in 1920. By sustained endeavour and assiduous work he got into
a flourishing practice. He was appointed an Additional Judge in 1940 of
the Chief Court, after the death of Mr. Justice Radhakishan Srivastava
and was later made permanent. He was elevated to the position of Chief
Judge of the Chief Court in 1946, after the retirement of Sir George Thomas.
After the amalgamation of the Chief Court with the High Court at
Allahabad, he became automatically a Judge of the amalgamated High Court,
but remained in Lucknow as Senior Judge. He retired on 2nd July, 1951’
After retirement he was appointed a Judge of the Supreme Court, but died
suddenly before completing the term of his office. He rendered free
service to the Lady Dufferin Fund Committee, as Legal adviser. The
Knighthood of the Order of St. John was conferred on him in 1947 in
recognition of his humanitarian service.
38. Rai Bahadur Saraswati Prasad, started practice as a pleader in
Kheri in 1907 at an early age and made his mark in the Bar by his ability
and industry. He was appointed Government Pleader shortly after he
joined the Bar, a position which he occupied for over 30 years. He was
appointed a member of the Special Tribunal for trial of anti-corruption cases
all over India for 5 years and later became its President. After retirement
from the Special Tribunal, he came and settled down in Lucknow, where
he acquired a large practice, both in civil and criminal cases involving com-
plicated questions of fact and law.
39. Chaudhari Ram Bharosey Lai— After obtaining LL.B. degree,
he joined the Bar in 1911. He was a prominent member of the Oudh Bar
‘and was its Vice-President for a number of years. He was enrolled as a senior
advocate of the Supreme Court.
40. Sri K. P. Misra, m. a. (oxon), Bar-at-law— He was the
elder son of the late Hon’ble Pandit Gokaran Nath Misra, temporary
Additional Judicial Commissioner of Oudh and later one of the first Judges
of the Chief Court of Oudh. He was born on 22nd October, 1895.
He had his first education in St. Francis School, Lucknow and later in the
Government Jubilee School in Lucknow. He was sent to England in
1914 and entered Merton College, Oxford, where he studied Law. At
the same time he entered the Hon’ble Society of the Inner Temple, where-
from he was called to the Bar in 1920. After return to India, he was en-
rolled as an Advocate in the Allahabad High Court early in 1921. He
set up his practice in Lucknow under the guidance of his distinguished
father and gradually picked up a very good practice first as a junior and
later as a senior. He would have been elevated to the Bench but for his
sudden unfortunate early death on January 25, 1949. He was a very good
speaker. He was a Reader of Law in the Lucknow University for a num-
ber of years from 1934. He took keen interest in civil affairs and was a
member of the Lucknow Municipal Board for a number of years. He
has a son Sri S. P. Misra practising in Lucknow.
41. Sri Data Prasad Khare— His original home was in the district of
Mirzapur. He had his early education in Mirzapur and Banaras. He took
his LL.B. degree from the Allahabad University and came to Lucknow in 1928,
and in a few years he built up a lucrative practice, first in the Civil Courts
in Lucknow and later in the High Court. In the year 1958, he was appointed
Senior Standing Counsel of the Government for Lucknow Bench of the
Allahabad High Court, but unfortunately sudden death due to heart failure
on 29th December, 1958, at the age of 56 cut short his brilliant career.
42. Sri G. G. Chatterji— He got his early education in Jumna High
School and Ewing Christian College, Allahabad, and graduated in law
from the Allahabad University. He made a modest debut in practice in
the City Magistrate’s Court and other criminal courts. Gradually by assiduity
he built up a sound practice in criminal cases, in the courts of Magistrates
and Sessions and ultimately in the Chief Court of Avadh and High Court.
He soon became a leader of the Avadh Bar in the Criminal side. He took
keen interest in the profession and was solicitous for the welfare of the junior
members of the Bar and as said by Hon’ble Beg, J. in the reference in court
after his demise, he trained many lawyers. He was a Reader of Criminal
Law in the Lucknow University for some years prior to his fatal accident.
He was interested in education and was on the Board of Directors of the
Lucknow Christian College.
oooOOOO©c
■2^* 23°
Law Officers of the State in Lucknow Courts
Judicial Commissioner’s Court
Government Pleaders
1. Rai Bahadur Sri Ram — An eminent lawyer, who was a member
of die Viceroy’s Legislative Council for a time.
2. Rai Bahadur Nagendra Nath Ghosal, who later became
Government Pleader of the Chief Court after its establishment but died
shortly after in May 1926.
Chief Court of Oudh
1. Sir George Hector Thomas, Barrister-at-law, was the first
Government Advocate in the Chief Court and Standing Counsel of the
Government and Court of Wards. He was appointed a puisne Judge of
the Chief Court in 1934 became Chief Judge in 1940 and retired in
1946. He was conferred Knighthood in December, 1940.
2. H. K. Ghose, Barrister-at-law, was appointed in May, 1926,
Government Pleader of Oudh, which designation was later changed into
Assistant Government Advocate and Junior Standing Counsel in the
Chief Court, officiated as Government Advocate in 1930-31 and again in
1935; was appointed Government Advocate and Senior Standing Counsel in
1941 and superannuated in July, 1946. Government conferred title of Rai
Bahadur on him in 1940. He is now Senior Vice-President of the Oudh
Bar Association, which celebrated the golden Jubilee of his practice on 18th
December, i960.
3. Syed Ali Mohammad, Advocate, Temporary Assistant Government
Advocate from June 1930-31.
4. Rai Bahadur H. S. Gupta, Barrister-at-law, called to the Bar by
Gray’s Inn. He started practice in Bahraich, where he was appointed
District Government Pleader and later was transferred to Lucknow as
Government Pleader in the Court of District Judge, Lucknow. He was
appointed Government Advocate and Standing Counsel in 1934, after Sir
George Thomas. Government conferred the title of Rai Bahadur on him.
5. Mr. S. C. Das, Barrister-at-law, now Standing Counsel of the
Income-tax Department in the High Court, officiated as Assistant
Government Advocate from May 1936 to December 1936 and again for
3 months in 1940.
6. Mr. Nasirullah Beg, M.A., Barrister-at-law (now Hon’ble Mr.
N. U. Beg, Chief Justice) was called to the Bar by the Gray’s Inn, London,
started practice in 1925, was appointed Assistant Government Advocate and
Junior Standing Counsel in the Chief Court in 1941 and Government Advocate
and Senior Standing Counsel in 1946. He was appointed a Judge of the High
Court on 1st July, 1951. He was Senior Judge incharge of the Lucknow Bench
for about five years and acted as Chief Justice on several occasions. On 24th
September, 1966, he was appointed as permanent Chief Justice.
7. Shri P. N. Chaudhari, Advocate, was appointed Assistant
Government Advocate in July 1946, and continued to work for the State upto
and after amalgamation of the two Courts, working as Deputy Government
Advocate, in Allahabad and later as Additional Government Advocate in
Lucknow Bench.
After the amalgamation of the two Courts in 1948, the functions of
the Government Advocate and Standing Counsel were separated and the
cadre of Law Officers in Allahabad and Lucknow were amalgamated.
SOME OF THE JUDICIAL COMMISSIONERS OF OUDH
# v**
Bottom — Left to right
Mr. W. C. Capper
(1870 8 c 1877—81)
Mr. Charles Currie
(1871 — 1877)
Jin HoVp.il Sir George Cwipbel
The Hon'ble Sir George Couper
(1863-63 S: 1867 — 71)
SOME OF THE JUDGES OF THE CHIEF COURT OF OUDH
The Hon'ble Mr. Justice Gokharan
Nath Misra
Bottom -Left to right
The Hon'ble Mr. Justice Mohammad Raza
The Hon’ble Mr. Justice Nanavutty
ft
Members of Governing Councii , Avaihi Bar Associaiion. Hk.ii C.ouri, Li'c.know Bench. I .n know
Members of the Bar, Hroii Court (Lucknow Bench), i ()(>(>
Advent of Women in the Profession of Law
By
MRS. RAMO DEVI GUPTA
Advocate, High Court, Allahabad
‘IplS^HE law will not suffer women to be Attorneys ’, ‘they are
unfit,’ were the ideas held by eminent Jurists like Lord Coke,
in England about 350 years ago. “Women are generally unfitted for
the duties of the legal profession .... Female Attorneys at law were
unknown in England, and a proposition that a woman should enter
the courts at Westminster Hall in that capacity or as a Barrister
would have created hardly less astonishment than one that she should
ascend the Bench of Bishop or be elected to a seat in the House of
Commons”, [ In re, Bradwell, (1870)55 111 . 535]. The three Judges of
the Court of Appeal, in Bobb versus The Law Society, reported in
(1914) 1 Ch. 286, relied on the positive prohibition of Common Law
of England, founded on inveterate usage which imposed an absolute
and positive prohibition against women practising the profession of
law and held that women could not be allowed to be solicitors.
Sex Disqualification and Removal Act of 1919, put an end to
such disability in England and women were allowed t oenter all
233
professions, including law. A British woman called to the Bar in
England, was allowed to practise in India as well, but an Indian
woman or a woman who qualified in India was not allowed to
practise even in ter own country.
The First Regulation VII of 1793 which created, ‘The pleading
of causes’, as distinct profession, laid down that ‘Men’ of character
and education, well versed in Mohammedan and Hindu Law, preferably
from Mohammadan College, Calcutta and Hindu College, Benaras,
could be admitted by Sudder Dewani Adalat. Then came certain
other enactments, and in 1879 the Legal Practitioners Act was
passed.
On 29th August, 1916, a Special Bench of Calcutta High Court,
In re, Kegina Guha, reported in (I. L. R. 44 Cal. 290), consisting of
the Chief Justice and four other Judges, refused the enrolment of
Miss Regina Guha as a Pleader, relying on the case of Bobb versus
The Law Society, supra.
Late Sri Madhusudan Dass, Vakil, a great patriot and social
reformer, encouraged one Miss Sudhanshubala Hazra to enter the
profession of Law, but her application for enrolment as pleader
was refused on 28th November, 1921 by a Full Bench of the Patna
High Court, In re, Sudhanshubala Hazra, (I.L.R. 1 Pat. 104), consisting
of Dawson Miller, Chief Justice, Mullick and Jwala Prasad, JJ.,
on the ground that the provisions of the Legal Practitioners’ Act,
1879, did not contemplate the extension of the privilege to
females.
The use of the word ‘Men’ in Regulation VII of 1793 although
subsequently in all enactments it was replaced by the word ‘persons’,
led to the two decisions aforesaid. Relying on the case of Bobb versus
The Law Society, it was held in both the aforesaid cases that provisions
of the General Clauses Acts of x 868 and of 1897 did not apply and words
234
importing the masculine gender shall not include the feminine, inas-
much as women were never there in the legal profession, either in the
Mughal or British days and the Legislature never intended to bring
about a change of such magnitude, so momentous and far-reaching
by so furtive a process. It was further held that the words ‘he’, ‘him’,
and ‘his’, in the subsequent enactments and the Legal Practitioners’
Act, 1879, show that they invariably excluded women not by any
direct prohibition but inferentially by words appropriate only to the
male sex. Following Miss Regina Guha's case, it was held in Miss
Hazra’s case, “it was not the intention of the Legislature in the Legal
Practitioners’ Act to reverse the established policy or to introduce
a fundamental change in long established principles of law and
that to read the sections as including females was repugnant to the
subject”.
Justice Mullick thus observed in Miss Hazra’s case, “If it were
permissible to speculate upon the reasons of the legislators, all that
can be hazarded is that having regard to the previous history of the
relations of the sexes and the general position of women in the
country, the Legislature was of opinion that it would be repugnant
to ideas of decorum to permit women to join in what I may call the
rough and tumble of the forensic arena”.
The Allahabad High Court, in spite of the above two decisions,
took the lead and changed the history by enrolling Miss Cornelia
Sorabji, as the first Indian Lady, Vakil of Allahabad High Court,
on 24th August, 1921. This was done by a decision of the
English Committee of the Court, consisting of the Chief Justice,
Sir Grimwood Mears and other member Judges present. In his
judgment Mr. Justice Jwala Prasad had remarked in the case of
Miss Hazra, “No doubt the recent admission of Miss Sorabji in the
Allahabad High Court might create some anomaly inasmuch as ladies
235 =££*
enrolled as Vakils in the Allahabad High Court may claim to practise
in occasional cases in the courts subordinate to this Court
This again is a ground for changing the present law”.
On 28th November, 1922, Miss Hazra was granted SpecialLeave
to Appeal by the Judicial Committee of the Privy Council against
the aforesaid judgment of Patna High Court, upon depositing
-£400 as security for costs. This sum of £400 amounting
nearly to Rs. 6,000 was beyond the means of Miss Hazra to pay.
Mr. Madhusudan Dass, on 8th February, 1923, wrote to Sir William
Duke, of the India Office a very forceful and warm letter requesting
to forego the amount of costs. He wrote, “The question relates to
permission to lady lawyers to practise in courts. If there is any
country where lady practitioners are necessary, it is India . . . where
pardah system is stringent and pardah ladies are often parties to the
suits. They cannot instruct lawyers of other sex and consequently
they become victims to the dishonesty of unprincipled Gomastas".
The Secretary of State for India very kindly consented to treat the
matter as one of public interest and did not insist on the deposit of
costs.
Mr. Madhusudan Dass then tried to explore the possibility of
changing the law and he found in Dr. Sir Hari Singh Gaur of
Nagpur, who was then a member of the Legislative Assembly, a
willing champion of the cause of women. He requested Dr. Gaur
to move a resolution in the Legislative Assembly to change the
inequitable law against women.
On 1st February, 1922, white a resolutionproposing amendment
of the Legislative Assembly Electoral Rolls to remove sex disquali-
fications in the matter of registration on the Electoral Roll was
moved by Mr. N. N. Joshi, Dr. Sir Hari Singh Gaur moved the
following amendment to that resolution :
236
“And the Government be further pleased to remove the
sex bar held to disqualify women from enrolment as legal
practitioners in the courts of this country”.
Dr. Gaur exhorted emphatically, “I say. Sir, that the whole
question is a question of justice and not a question of favour. Are
you prepared to give justice to your female folk ? Sir, if nothing
else entitles women of this country to their rights and privileges,
it is the great service they have rendered to you and to the nation
in the immediate past. And I say, Sir, that even if it was a question
of favour and not a question of primary human right, I would still
ask the Assembly to remember the service of women in the past and
to support their claim”.
Maulvi Abdul Kasem of Dacca supporting the amendment said,
“Sir, an amendment has been moved by Dr. Gaur, asking that ladies
should be permitted to appear as members of the Bar and I see no
reason why this privilege should be denied to them. Ladies who
pass their examinations are as competent as males to practise at the
Bar . . . They will be of great assistance to Purdahnashin ladies since
they could take up their cases and fight them out without the
intervention of a male and a tout”.
On 15th August, 1922, a memorial on behalf ofMiss Ham was
submitted by Shri Madhusudan Dass to the Viceroy with copies to
Sir Frederick Whyte, President of the Legislative Assembly and its
members. The enrolment of Miss Cornelia Sorabji by the Allahabad
High Court was also cited as a ground in the Memorandum for
getting the law amended. On 28th February, 1923 the bill was
introduced in the Assembly.
Khan Abdul Rahim Khan (North-West Frontier Province)
supporting the bill remarked, “Another thing which has not bon
brought to the notice of the Hon’ble House is that the presence of
237
ladies as Barristers in courts will make the Judges and the Barristers
behave themselves”.
A big majority supported the bill and prevailed upon the
Assembly to pass the Legal Practitioners’ (Women) Act, XXIII of
1923, by which women were allowed to practise as lawyers. Since
then, though not in large numbers, women have joined the profes-
sion of law in all the States of India. Women have fully justified
this legislative measure, as they have not been found in any manner
inferior to men in intelligence, integrity or professional competency.
It maybe of some interest to note that in 1931 Sir Hari Singh
Gaur sent one of his daughters, Swarup Kumari (now the wife of
Mr. Justice W. Broome) to England for legal education. She
attended the Inner Temple, where her father had received his legal
training, and was called to the Bar. However, on her return to
India she did not take to the profession of law, but chose to become
a good housewife.
In 1929, Miss Shiam Kumari Nehru, now Mrs. Shiam Kumari
Khan, on 26th June, 1931 late Miss Lena W. Clarke (later Mrs.
L. W. Banerji) and on 22nd February, 1933 Mrs. Meenakshi Amina
Faruki Begum, got themselves enrolled in Allahabad High Court
and actually practised for some years. At present there arc
several women Advocates practising in this High Court as well as
in the District Courts of U. P. One of them practising at Bareilly
has been elected a member of the present U. P. Bar Council. The
author of this article was elected General Secretary of the U. P
Lawyers’ Conference.
Under the Constitution of India discrimination on the ground
of sex is prohibited and all venues are now open to women. It is
hoped that women will now be appointed in larger number both in
the higher and lower judiciary. There is already one woman Judge,
238 tS £ £l0
viz. the Honble Smt. Justice Anna Chandy, in the Kerala High
Court.
Mr. Justice S. S. Dhavan, who recently led a cultural delegation
to U. S. S. R., said, during a talk on his return that in Leningrad
70 per cent of the Judges of the Peoples Court are women and that
43 per cent of the Advocates of the Moscow Bar are women ; to be
exact 430 women Advocates out of total number of 1,000 Advocates.
A woman was appointed a Judge of the Supreme Court of Tajikistan
Republic at the age of about 25 years.
The women lawyers in India shall always remember with
gratitude and respect the great work done to uphold their cause by
pioneers like Miss Sudhansubala Hazra, Mr. Madhusudan Dass,
Dr. Sir Hari Singh Gaur and last, though not the least, the High
Court of Allahabad, which gave a lead in the matter.
239
History of Law Reporting in India
By
SRI J. K. MITTAL, ll.m v
Lecturer in Law , University of Allahabad
England, the gradual development of the art of law report-
^ Jgj ing reflects the growth of the authority of precedent . 1 A
court is bound by the ratio decidendi of every case decided by a higher
court, and in the case of the House of Lords and the Court of Appeal,
the position has traditionally been that they are bound by their own
decisions. But now it appears that the House of Lords is not attached
to the doctrine of precedent in all circumstances. It has been
observed by Lord Reid in Scruttons , Ltd. v. Midland Silicones Ltd ., 2
that the House of Lords may question or limit the ratio decidendi of a
previous decision in three classes of cases : first, where it is obscure;
secondly, where the previous decision itself is out of line with other
authorities or established principles; and thirdly, where it is much
1 Harold Potter, A Historical Introduction to English Law and its Institu-
tions , at p. 262 (1948). For history of law reporting in England, see ibid., at pp
258 — 268 ; Philip S. James, Introduction to English Law , at pp. 10 — 16 (1962).
s (i 962) 1 All ER. 1.
wider th an was necessary for the decision so that it becomes a ques-
tion of how far it is proper to distinguish the earlier decision. In a
later case, Chancery ham Safe Deposit and Offices Company , Ltd.
v. Inland Revenue Commissioners f the opinion of Lord Reid and
Lord Upjohn was that the rule of the House of Lords neither to
reverse nor to depart from a previous decision of the House applied to
the reasoning of the decision but did not bind the House to follow
a previous case merely because it was indistinguishable on its facts.®
As regards the Court of Appeal, it does not appear that there is
any departure from the traditional position.
In India, there has been no such development of the art of law
reporting and the growth of the authority of precedent as in England.
The method of law reporting to preserve judicial decisions and
the principle of the authority of precedent have been adopted in this
country from England. As in England, a court in this country
is bound by the ratio decidendi of every case decided by a higher
court; but the Supreme Court and the High Courts are not bound by
t he ir own decisions. In Bengal Immunity Company , Ltd. v. State
of Biharp the Supreme Coart held that it can depart from a previous
decisionif it is convinced of its error and its baneful effect on
the general interests of the public . 1 * * 4 5 6 The same is the position
in the High Courts also . 0
1 (ig6*) x All E.R. 1 at p. 12.
* (1966) x All E.R. x.
* Ibid , at pp. 10, 21.
4 A.I.R. 1955 S.C. 661.
5 Ibid , at pp. 672. See also Sajjan Singh v. State of Rajasthan, A.I.R. 1965
S.C. 845, at p. 855.
6 State of Uttar Pradesh v. Firm Deo Dutt Lakhan Lai, A.I.R. 1966, All. 73 at
The History of law reporting in India may be divided into two
parts : the first dealing with the early stages of its development
(roughly a period 1813— 1 86 1), and the second with a more regular
course which is said to have commenced with the establishment of
Presidency High Courts in 1862.
Early Stages
In 1813 the necessity of establishing the authority of precedent
in India was for the first time emphasised in the following words :
*. . . it should be enacted by a Regulation that from a given period,
the judgments of the court shall be considered as precedents binding
upon itself and on the inferior courts in similar cases which may arise
thereafter. This will have the effect of making the superior courts
more cautious and of introducing something like a system for the
other courts, the want of which is now very much felt/ It
was further emphasised that ‘hitherto it has not been much the custom
to refer to precedent; and for ought the Judges of the court
may know, the same points may have been decided over and over again
and perhaps not always the same way. It is obvious that having some-
thing like a system established would tend to abridge the labours of
the civil courts/
Thus arose the need of the publication jof reports of cases
involving questions of native law, and also of the publication of
other reports, for guidance of the courts themselves as well as
the legal practitioners.
Again in 1850 one William Macpherson observed that the
practice and doctrines of the civil courts must be deduced, in great
measure, from an examination of the decisions at large, both those
which have been especially adopted and published as precedents and
those which are issued monthly as a record of the ordinary transac-
tions of the Sadar Courts; for all decisions practically tend to show
by what principles the court is governed; and they become law, that
is to say, they guide men in their private transactions and they
regulate the decisions of the courts. No one can make the examina-
tion to which I have referred, without perceiving that there is a large
body of living doctrine, which appears to mature itself by degrees in
the minds of experienced judicial officers, but which is not to be met
with in any definite form. Yet by this test the judgments of the
inferior courts are necessarily tried, and no small portion of them are
quashed for erroneous procedure, frequently with great severity
of comment upon the part of the highest tribunal . •
In this context we refer to the collections of reports made
during 1813—1861 :
Reports of Cases decided by the Crown’s Courts 1
The published collections of reports of Indian Decisions were
not many, but they already existed in sufficient numbers to be of
the greatest practical utility, and additions were made to them
day by day.
The decisions of the Privy Council on appeal from India were
originally inserted in the reports of Knapp and Moore. Later on,
they were published separately under the ritle ‘Indian Cases’,
and appeared at intervals. There was also a valuable collection
The Mayors Courts, established in the Presidency Towns under the Crown’s
Charter of xya6, were the first Crown’s Courts. They were subsequently replaced
by the Supreme Courts established in Calcutta, Madras and Bombay under the
Parliamentary Acts of 1773* 1800 and 1833 respectively.
of the printed cases decided in appeals, and prepared by Lawford, but
it was never published.
W. H. Morley included in the Appendix to his Digest of
Indian Cases, a valuable series of notes of cases of the Calcutta
Supreme Court prepared by Judge Sir Edward Hyde East. The
notes contained many important decisions on native law and
questions relating to the jurisdiction of the Court.
Reports of cases were given by way of illustration by Sir
Francis Macnaghten in his ‘Considerations on the Hindu Law’, as
current in Bengal, published in 1824. These Reports, from the
nature of the work from which they were extracted, were, of course,
confined to cases involving questions of Hindu Law.
Notes of cases were found in Longueville Clarke’s editions
of the Rules and Orders of the Calcutta Supreme Court,
published in 1829 ; of the additional Rules and Orders which
appeared in the same year ; and of the Rules and Orders for
1831-32, published in 1834. These notes of cases were very valu-
able, many of those in the two latter collections containing the
judgments in full and relating to points of native law of great
interest.
Reports of cases decided by the Calcutta Supreme Court were
published by Bignell in 1831. Only a single number of these
Reports appeared. The cases were fully and ably reported.
Notes of cases were inserted by Smoult in his Collection of
Orders on the Plea Side of the Calcutta Supreme Court from 1774
to 1813, published in 1834. These notes were succinct but highly
useful and comprised decisions, principally on points of practice,
from 1774 to 1798.
In 1841 Morton published a Collection of Decisions of the
Calcutta Supreme Court. It was principally compiled from the
manuscript notes of R. Chambers, C. J., Hyde, J., and other Judges
of the Court and the cases related almost exclusively to questions
altogether peculiar to India. It ms a work of great utility and
authority.
Fulton published a single volume of reports in 1845. This
volume comprised cases decided in the Calcutta Supreme Court
between 1842 and 1844’
The example set by Morton and Fulton by publishing the
decisions of the Calcutta Supreme Court was followed by the other
barristers of the Court. In 1850 Montriou published a volume of
Reports comprising decisions delivered in 1846. In 1851 Taylor
continued these Reports comprising decisions given in 1848.
Taylor .in collaboration with Bell published the subsequent
cases.
The only collection of the decisions of the Madras Supreme
Court was published by Sir T. Strange, C. J. This work appeared
in 1816 and comprised three volumes. The cases were clearly set
forth and the judgments frequently given in entirety ; but from the
paucity of the materials placed at the disposition of the Judges at
that time, the decisions of the Court, relating to questions of native
law, must be taken with some reservation.
A valuable collection of the decisions of the Bombay Supreme
Court was given by Morley in the Appendix to his Digest
of Indian Cases. These decisions were made available by Sir
Ef skit^ Perry, C. J. They gained additional authority from
the fact of the manuscript having been carefully revised and
corrected by Sir Perry himself. In 1853 Sir Perry published
a collection of cases ‘illustrative of Oriental life, and the
application of English law to India’, decided by the Supreme
Court.
246
Reports of Cases decided by the Company’s Courts 1
The first printed Reports of cases decided by the Courts of the
Company -were published by Sir William Hay Macnaghten, while he
was Registrar of the Calcutta Sadar Diwani Adalat. These were the
Reports of the cases decided by this Sadar Adalat. A second edition
of the first two volumes appeared in 1827, and the Reports were
subsequently continued in the same form. Those contained in the
first volume were chiefly prepared by Dorin who later became the
Judge of the Court. The notes appended to the cases in this volume
were entitled to weight as having been written or approved by the
Judges who had decided these cases ; and those explanatory of intri-
cate points of Hindu Law were most especially valuable as coming
from the pen of Henry Colebrooke. The second, third and part of
fourth volumes were also published by Sir William Macnaghten.
The later cases in the fourth volume were selected and prepared by
C. Udney, his successor in the Office of Registrar. The cases con-
tained in the fifth volume were reported by Justice Sutherland.
The cases given in the sixth and seventh volumes had no reporter’s
name affixed, but they were approved by the Court and were believed
to have been prepared by the Registrars.
Since the end of 1844, these Reports, which were later
called ‘Select Reports’, published ‘as approved by the Court’, were
‘but a reprint, accompanied by notes, of such of the decisions, pub-
lished monthly, as containing constructions of law, or being illustra-
tive of points of practice, are adapted to serve as precedents to the
lower courts’. It was subsequently determined by a resolution of
the Court, dated April 27, 1849, that the publication of the Select
1 The courts established in India by tire East India Company.
247
Cases should be discontinued. The mere reprint of a selection from
the monthly publications of decisions was perhaps unnecessary, as
the object of pointing out the ‘leading cases’, might have been more
readily accomplished by the edition of a tabular reference and
explanatory notes, sanctioned by the Court, and appended to the
monthly issue. This was, however, not done, and it could not be
d eni ed that much inconvenience had arisen from the discontinuance
of the Select Reports.
Reports of summary cases decided by the Sadar Diwani Adalat
at Calcutta from 1841 to 1846 were appended to seventh volume of
the above-mentioned collection. In 1845 a selection of reports of
summary cases was published separately, containing selected decisions
from 1834 to 1841, the former year being the period in which the
Summary and Miscellaneous Department of the Business of the
Court was first entrusted to one Judge. These were continued to
the end of 1848, and were published as the first volume of Reports
of Summary Cases. In the resolution, as mentioned above, it was
stated, in respect of the Reports of Summary Cases, that “the Court
are of opinion that their publication may go on, not as ‘approved
by the Court’, but with the sanction only of the Judge incharge of
the Miscellaneous Department, whose decisions they are, and who
will note such of them as he may think useful for publication”.
An Index to all the seven volumes of the Select Reports of
Regular Cases and to the first volume of the Select Reports of
Summary Cases was published in 1849.
A reprint of the Reports of Summary Cases decided by the
Calcutta Sadar Diwani Adalat comprising reports from 1834 to 1852
was prepared by Carrau and published at Calcutta in 1853. This
work is said to. have been published by authority, and under the
supervision of the Judges.
<*2^, 248
Another edition of the summary decisions of the Calcutta
Sadar Diwani Adalat from 1834 to 1855, alphabetically arranged, was
published at Calcutta in the latter year.
Reports of cases, chiefly in summary appeals, decided by the
Calcutta Sadar Diwani Adalat, were published by Sevestre, a pleader
of the Court. First volume of this collection comprised three parts
and was completed in 1842. These Reports were exceedingly useful
and were further in progress.
The decisions of the Calcutta Sadar Diwani Adalat, recorded in
English, in conformity to Act XII of 1843, then began to be publish-
ed monthly. This collection was commenced in 1845 by order of
the Governor-General. The decisions of each year formed a separate
volume. In the volume for 1850, marginal abstracts of the deci-
sions reported were for the first time added.
The former Reports of cases decided by the Sadar Courts
principally related to constructions of the written law and touched
only occasionally points of procedure and practice, so that the
publication of the decisions recorded in English, including cases of
every description, may be said to have opened an entirely new field
for the investigation of the student.
The monthly collections, referred to above, were of great value,
and as they were published simultaneously at Calcutta, Agra and
Madras, any one could form a comparison between the practice of the
several courts of last resort, which could not fail to be of the utmost
utility in furthering the attainment of uniformity of procedure
through the courts in India. Unfortunately, however, the decision
in these collections were not easily referred to ; the Indices appended
were insufficient and the mode in which the cases themselves were
reported was often such as to render it difficult to seize their full
bearing. It is also regretted that the plan of adding marginal notes
249
to these collections had been long delayed and was not even generally
followed. No person, who did not examine them attentively, could
form an idea of the labour required to master the contents of a single
volume. The propriety of the object of their publication, viz., e to
give all possible publicity to the decisions of the Sadar Courts’, was
unquestionable, but it may be doubted whether the requisite publi-
city might not have been better attained by adopting a somewhat
modified form. There was frequent and needless repetition of simi-
lar cases and decisions. This repetition was especially conspicuous
with regard to cases involving points of practice, cases constantly
recurring in which precisely similar circumstances presented them-
selves, an d the erroneous decisions of the lower courts, passed on the
same points, were reversed, or the suits remanded on appeal, on
identical grounds.
The decisions of the Zila Courts of the Lower Provinces,
recorded in English according to the Act of 1843, were printed
monthly in the same form as the preceding collections. The decisions
of the Zila Courts in the North-West Provinces were also published in
a similar way and form. They were commenced in 1848. The
decisions of the Zila Subordinate and Assistant Courts of the
Madras Presidency were also published monthly. They began with
the cases decided in 1851. All these collections of cases of Zila
Courts were, however, comparatively unimportant since they were
never referred to in the superior Courts as precedents.
The reports of cases decided by the courts of the Company at
Madras, with the exception of the monthly collections already
mentioned, were few in number. A volume was published in 1843'
entitled as ‘Decrees in Appeal Suits determined in the Court of Sadar
Adalat’, Volume I, containing select decrees from 1805-1826. The
cases in this collection involving questions of Hin du Law were
interesting as illustrative of the prevailing doctrines of the southern
schools. These decrees were, however, obscurely reported and in
some instances they contained no point of law whatever, being
merely decisions for want of proof.
A collection of decrees in appeal suits decided by the Sadar
Adalat at Madras from 1826 to 1847 was published at Madras
in 1853.
The first collection of the decisions of the Sadar Diwani
Adalat at Bombay was the well-known series of Reports by Borra-
daile, formerly a Judge of the Court and the author of the transla-
tion of Mayuhha. His work was in two folio volumes and was
published at Bombay in 1825. It was full of cases on points
of law peculiar to that part of India ; these cases were ably reported.
A small but useful publication appeared in 1843 entitled
as Reports of Selected Cases determined in the Sadar Adalat at Bom-
bay. The Reports contained in this little volume were prepared,
with few exceptions, by the Deputy Registrars of the Court and
were arranged according to the dates of decisions which were
scattered over a period extending from 1820 to 1840, the latter ones
having been noted by the Judges as proper subjects for publication.
In 1850, Bellasis, once Deputy Registrar of the Bombay Sadar
Diwani Adalat published a small volume containing decisions of that
Court from 1840 to 1848, intended as a continuation of the Reports
of Selected Cases. Bellasis stated that ‘the cases reported are for the
most part the decisions of a full Court of three Judges, such
being considered more authoritative as precedents’. A few Reports
in this collection were prepared by Babington while he was the
Deputy Registrar of the Sadar Court.
In 1 By 5, Morris commenced the publication of Reports of
cases decided by the Sadar Diwani Adalat at Bombay. The first
251 <*££?
volume contained all the decisions for 1854. Each of the subse-
quent volumes comprised the decisions of a year.
In the branch of the criminal judicature, only a few Reports
were printed. The first collection that appeared was of the sentences
of the Sadat Nizamat Adalat at Calcutta. The first two volumes
were prepared by Sir William Macnaghten. There was no reporter’s
name in the subsequent volumes.
In 1851, a monthly series of decisions of the Calcutta Nizamat
Adalat was commenced.
At Madras a similar issue of Reports of criminal cases decided
by the Sadar Faujdari Adalat began in the same year. Marginal
abstracts were added in this series.
A valuable collection of Reports of cases decided by the Sadar
Faujdari Adalat at Bombay, compiled by Bellasis and comprising
decisions from 1827 to 1846, appeared in 1849. The cases recorded
in this collection were selected to illustrate the application of
the Bombay Criminal Code, both in questions of evidence and
of punishment and also to settle doubtful points of procedure
and practice. r
In 1852 publication of the decisions of the Sadar Nizamat
Adalat of the North-Western Provinces began. It commenced with
the decisions of 1851.
In 1 855 Morris published a collection of Reports of cases decid-
ed by the Sadar Faujdari Adalat of Bombay, the cases commencing
with those of 1854. Two volumes were published every year each
containing the decisions of six months.
ed bv W t M ‘ S ,’ Aml7ti ? 1 DigCSt ° f aU thC K ? 0rtCd P“P“-
ed by W. H. Motley, may be mentioned. In 2850 he published its
to thlTrilt? K ' being ; CC00,panicd b P c °P ious «««. referring
to the original authorities and explanatory of doubtful points. The
work was received favourably and, therefore, it was further con-
tinued. In 1852 Morley published the first volume of a ‘New Series’
comprising the decisions of all the courts to the end of 1850. 1
Reporting after 1861
Hitherto law reporting was not regular and systematic. It was
only with the establishment of the High Courts in the Presidency
Towns in 1862 that regular law reporting commenced. From that
time semi-official and private law reports came to be published regu-
larly and systematically. At present there is official law reporting
also.
Sir James Stephen, who was the Law Member in the Governor-
General’s Council, recorded a minute to the effect that law reporting
should be regarded as a branch of legislation; he accepted the princi-
ple that it was hardly a less important duty of the Government
to publish the law enunciated by its tribunals than to promulgate its
legislation. On this subject a circular was issued to various local
Governments and the High Courts. Later on Mr. Hobhouse, who
succeeded Sir Stephen as the Law Member, became interested in the
subject of law reporting and took initiative in the passing of the
Law Reports Act in 1875 for the improvement of Law Reports. Its
section 3 gave authority only to authorized reports by providing
that no court would be bound to hear cited, or would receive or treat
as an authority binding on it, the report of any case decided by any
High court, other than a report published under the authority of
the Government. After the passing of this Act, Councils of Law
reporting were set up in several High Courts and Reports began to
1 This part of the article under the heading ‘Early Stages’ is based on W. H.
253
be published under the supervision and authority of the Govern-
ment.
The Act of 1875 which was' an attempt at creating a partial
monopoly in favour of official Reports, was strongly opposed. Sir
George Campbell who was then Lieutenant-Governor of Bengal said :
‘If you put into the hands of any one authority the power of deciding
which of these decisions should be treated as authoritative and which
are to be rejected and snuffed out, you give that authority an enor-
mous power over the Superior Courts of the country: you make him,
in fact. Judge over the Judges.’ Notwithstanding this Act,
unofficial reports, published in this country, were and are cited before
the superior courts and relied upon by them in their judgments. In
fact the Act has proved to be a dead letter. In 1927 a non-official
Bill, introduced in the Central Legislature, containing provision to
ban the citation of non-official Law reports, met with a strong criti-
cism and opposition and ultimately collapsed. Recently the Law
Commission also declared that monopoly of law reporting was not
desirable, and suggested that the Act of 1875 should be repealed. 1
According to the information available in the 14th report of
the Law Commission, the official and non-official Law reports, pub-
lished in this country, are mentioned below. 2 3
Non-Official All India Reports.
(1) All India Reporter. (2) Criminal Law Journal.
Official Law Reports.
(1) I. L. R., (Indian Law Reports), Allahabad. (2) I. L. R.,
Andhra Pradesh. (3) I. L. R., Assam. (4) I. L. R., Bombay.
1 Morley: The Administration of Justice in British India, at pp. 331 — 346 (1858),
with some changes in the language and arrangement.
3 Law Commission of India, Fourteenth Report 9 at pp. 633, 634.
(5) I. L. R., Calcutta. (6) I. L. R., Cuttack. (7) Jammu &
Kashmir Law Reports. (8) I. L. R., Kerala. (9) I. L. R., Madhya
Pradesh (taking the place of I. L. R., Nagpur and I. L. R., Madhya
Bharat). (10) I. L. R., Madras, (n) I. L. R., Mysore. (12) I. L. R.,
Patna. (13) I. L. R., Punjab. (14) I. L. R., Rajasthan. (15)
Supreme Court Reports.
Non-Official haw Reports.
(1) Allahabad Law Journal. (2) Allahabad Weekly Reporter.
(3) Andhra Law Times. (4) Andhra Weekly Reporter. (5) Bihar
Law Journal. (6) Bombay Law Reporter. (7) Calcutta Law
Journal. (8) Calcutta Weekly Notes. (9) Calcutta Law Times.
(10) Jabalpur Law Journal (Gwalior) (previously Madhya Bharat
Law Journal). (11) Jabalpur Law Journal (Jabalpur). (12)
Karnatak Law Journal. (13) Kerala Law Journal. (14) Kerala Law
Times. (15) Madhya Pradesh Cases. (16) Madhya Pradesh Law
Journal. (17) Madras Law Journal (Civil). (18) Madras Law
Journal (Criminal). (19) Madras Law Weekly. (20) Madras Weekly
Notes. (21) Mysore Law Journal. (22) Nagpur Law Jaournal. (23)
Patna Law Reports. (24) Punjab Law Reports. (25) Rajasthan
Law Weekly. (26) Supreme Court Appeals. (27) Supreme Court
Cases (in Hindi). (28) Supreme Court Journal.
Special haw Reports.
(1) Company Cases. (2) Company Cases Supplement.
(3) Factories Journal Reports. (4) Income Tax Reports.
(5) Labour Appeal Cases. (6) Labour Law Journal. (7) Sales Tax
Cases.
Law Commission and Law Reporting
The Law Commission, appointed in 1955, has dealt, in detail,
255
with the question of Law repotting in India and has made certain
valuable suggestions for improvement.
The Law Commission has omitted to consider the desirability
of undertaking the reprinting of old Law Reports. It is submitted
that in the interest of administration of justice, it is necessary that
this project should be undertaken by either the Government or
some private agency under the supervision of the Government.
1 Law Commission of India, Fourteenth Report, at pp. 636 - 637 * 641 # 646-
3 See Resolution on Revision of Law Reports, reported in the Journal of the
Indian Law Institute, Vol. 4, at p. 631 (1965).
A Historical Retrospect of the Administration of
Justice in Kumaun
BY
SRI N. D. PANT
Advocate, High Court, Allahabad and Supreme Court
26th April, 1815, Almora was captured by the British forces, and
under the treaty ofSigauli in 1816, Nepal formally ceded the territory
now comprised in the Kumaun and Uttarakhand Divisions, district of Dehra
Dun, and certain other areas to the East India Company. A province of
Kumaun was formed consisting of the erstwhile districts of Almora, Garhwal
and Naini Tal. Garhwal was separated from Kumaun under Act X of 1838,
and another Terai district was also created. Thus the province of Kumaun
included the districts of Kumaun, Garhwal and Terai. But on 13th October,
1891, Naini Tal district was formed by combining the Tarai and Bhabar
area, with certain hill patties which were formerly included in what was
known as Kumaun district which thereafter came to be known as Almora.
The three districts of Almora, Naini Tal and Garhwal constituted the
Kumaun Division. On the merger of the erstwhile Tehri State in 1949,
Tehri district was also added to this Division.
On the absorption of Kumaun with the rest of British India, the then
Governor-General appointed one Hon’ble E. Gardner to assume the office
257
and title ofCommissioner for Affairs of Kumauti and Agent to the Governor-
General on 3rd May, 1815. and Mr. G.W. Traill as his Assistant. But as
the former mostly remained busy with his military and political duties in Nepal
the burden of administration fell on his Assistant, Mr. Traill.
The administrative history of Kumaun Division, in the words of
Whalley in his “Law of Non-Kegulation Provinces” divides itself into
three periods “Kumaun under Traill; Kumaun under Batten and Kumaun
under Kamsay. The regime in the first period was essentially paternal,
despotic and personal. It resisted the centralising tendency which the
policy of the Government had developed. It was at the same time, though
arbitrary a just, wise and progressive administration. Mr. Traill s
a dmini stration lasted from 1815 to 1835.
“Mr. Batten ruled Kumaun during 1836— 56, but the early stages of
his rule were marked by an influx of codes and rules and a predominance of
official supervision which gradually subsided as Mr. Batten gained influence
position and experience. Thus the second period glided insensibly,
into the third which nevertheless has a distinctive character of its own. In
Sir Henry Ramsay’s administration we see the two currents blended. The
personal sway and unhampered autocracy of the first era, combining with
it the orderly procedure and observance of fixed rules and principles which
was the chief feature of the second.”
It may be stated that in the earliest times administration of justice, civil or
cr iminal , was hardly any problem to the British Government. From 1st of
Janury, 1820 to 31st December, 1821 the total number of criminals confined in
Jail amount ed to sixty-five out of whom 4 had been convicted of murder,
3 for thefts above R.s.50 and the rest for petty thefts, assaults, defamation,
forgery, etc. In the words of Traill himself in his Statistical Sketch of
Kumaun, “Affrays of a serious nature are of rare occurrence and even petty
assaults are most infrequent Applications to court on the subject of
caste are numerous ; these are invariably referred to the Pandit of the court.
whose decree delivered to the party concerned is conclusive. ... In civil
judicature the simple forms of the preceding Government have been
generally retained. The petition originating the suit is required to be
written on an eight-anna stamp but no institution or other fees are levied ;
a notice in the form of an ittalanama is then issued which process is served
by the plaintiff and in three cases out of four produces a compromise between
the parties; where ineffectual it is returned by the plaintiff into court,
when the defendant is summoned. The parties then plead their cause in
person and should facts be disputed on either side, evidence is called for.
oaths are never administered except in particular cases and at the express
desire of either parties. Suits for division of property or settlement of accounts
are commonly referred to arbitrators selected by the parties. In the issue and
execution of decrees, the established forms are followed, but the leniency
of native creditors renders imprisonment and sales in satisfaction of decrees
uncommon ... At present only one court (Commissioner’s court) exists
in the province for cognizance of civil cases, and the absence of fees and sim-
plicity of forms as therein practised joined to its frequent removal to every
part of the country, have hitherto tended to prevent any inconvenience being
experienced from want of mofussil courts. The gratuitous administration
of justice has not been found to excite litigations” (Our Law and Finance
Ministers to note !)
Untramelled by any laws, rules and regulations Mr. Traill made his
own arrangem en ts for administration of civil and criminal justice. He was
not only the head of the civic administration but the sole legislator and dis-
penser of civil justice. He had framed his own rules of procedure for pre-
sentation of plaints on an eight-anna stamp irrespective of the valuation of
the claim on presentation of which the plaintiff was required to serve
notice on the defendant himself. In seventy-five per cent cases the claims
were compromised. In others the parties were first examined whereafter
their witnesses, if any, were examined, but oath was generally not administered.
259 =*££
There were no lawyers and no one was permitted to act as an agent
of the contending parties, and the maximum duration of a suit was twelve
days. Incidently it may be stated that Mr. Traill also conducted the first
‘Nazarandazi’ survey of Kumaun in Samvat 1880 i.e. 1818 A. D. (com-
monly known as “Sal assi”) which still continues to form the basic document
for determining village boundaries. There was no actual survey, but Mr.
Traill nationally allotted land amidst the different villages by reference to
natural or prominent features existing on the northern, southern, eastern and
western boundaries of each village. Actual survey operations in most of the
areas of Kumaun were undertaken for the first time by Mr. Beckett in 1856.
According to Walton’s Gazetteer for the District of Almora first Munsif
was appointed in 1829 and seven Kanungos were invested with the title
and powers of Munsif, and title of Sadar Amin was conferred on Court
Pandit. These officers continued to exercise powers of civil judges till
1838 when these offices were abolished and the Act X of 1838, was
enforced under which the two districts of Kumaun and Garhwal each had
one senior Assistant, one Sadar Amin and one Munsif under Sudder Dewani
Adalat. In Civil Administration, Kumaun Province was placed under
the jurisdiction of Sudder Dewani Adalat in 1838 and remained subject
to its jurisdiction till 1864. The Assam Rules with certain modifications
were adopted for the administration of civil and criminal justice in
1839. These rules were superseded in 1863, by a set of civil and revenue
rules known as Jhansi Rules. Statutory authority was given to these rules
by section 2 of the Non- Regulation Districts Act (Central Act XXIV
of 1864), under section 4 of which Civil Procedure Code was also made
applicable. Rules for service of processes were based on the lines laid down
by Mr. Traill.
Thereafter a new set of rules under notification no. 628/VII— 569-B,
dated 27th June 1894, were promulgated under which the Commissioner
was constituted as the High Court of Kumaun except in the cases under
Succession Act, in which he acted as a District Judge and an appeal lay
to the High Court of Allahabad against his decision. The other revenue
officers (e.g. Assistant Collectors) were invested with the powers to decide
civil cases with varying extent of jurisdiction. The Government had how-
ever been given power under Rule 17 to make reference to the High Court
of Allahabad against the decision of the Commissioner sitting as the High
Court of Kumaun, and thereafter to decide the case in accordance with
the opinion of the High Court. There are a number of reported cases decided
by the High Court under Rule 17 of the Kumaun Rules, 1864, e.g.—
(1) 1 Allahabad Law Journal Reports, page 29 — Niaz Ahmad vs.
Abdul Hamid.
(2) 1905 Allahabad Weekly Notes, page 91 — Kumia Giro vs.
Narottam.
(3) 18 Allahabad Law Journal Reports, page 381 — Nasibullah vs.
Kunwar Anand Singh.
(4) All India Reporter, 1924, Allahabad, 318— Amlanand vs. Nandu.
(5) All India Reporter, 1925, Allahabad, 648 — In the matter of
Shy am Lai Sah.
(6) All India Reporter, 1929, Allahabad, 223— Gaje Singh vs.
Uchhapia.
The Commissioner of Kumaun, however, continued to exercise the
powers of a High Court until the enforcement of Notification no. 543/VII
—421, dated 1st April, 1926 (published at page 57 of the Rules and Orders
Relating to Kumaun) when a District Judge was appointed to exercise
jurisdiction over Pilibhit, and the three districts Almora, Garhwal and Naini
Tal constituting the Kumaun Division. Later on Pilibhit was separated
from Kumaun judgship. The Deputy Commissioners of the three districts
were invested with the powers of a subordinate judge and Assistant Collectors
who were revenue officers were empowered to try civil suits up to a valuation
of rupees five thousand.
261
The arrangement of investing revenue officers with the powers
of Civil Judges and Munsifs did not work satisfactorily after 1926 when the
District Judge of Kumaun became the Appellate Court in respect of civil
cases decided by them. These revenue officers not very much conversant
with civil laws found that their judgments were subjected to severe criticism
at the hands of the District Judge. Consequently they were shy to try civil
cases which had been thrust upon them by virtue of their office as Assistant
Collectors. This led to an appalling state of arrears in the disposal of civil
cases. Sir Iqbal Ahmad the then Chief Justice, drew the attention of the
Government to this fact. In 1942 the U. P. Government agreed to post
one Judicial Officer at Almora with powers of an Assistant Collector
of first class, who by virtue of his office became a Civil Judge with juris-
diction to try civil suits up to a valuation of Rs. 5,000.
This experiment proved very successful. Consequently in 1947 the
Government appointed a number of young and promising lawyers as
Revenue Officers exclusively to try and dispose off civil cases. In 1952,
the High Court appointed its own Munsifs and Civil Judges under Bengal
and Assam Civil Courts Act.
After the merger of the erstwhile Tehri State one more Civil and
Sessions Judge was posted to Kumaun under the District and Sessions Judge
of Kumaun. On account of administrative convenience his Headquarters
were fixed at Tehri. The District and Sessions Judge of Kumaun is also
a Civil Judge of Kumaun and as such he tries and disposes off high valua-
tion original suits. An Additional Civil and Sessions Judge is also appointed
to help him whenever the workload justifies that appointment.
As regards administration of criminal justice, criminal jurisdiction
was conferred on Kumaun officers in July 1817 under Regulation X of
18x7 except in certain serious offences like murder, robbery, treason, etc. for
the trial of which a Commissioner had to be specifically appointed by the
Governor-General in Council. The Commissioner, so appointed, after recording
262
evidence in the case, used to submit his report to the Nizamat Adalat which
passed the final sentence. It seldom became necessary to appoint a Com-
missioner under this provision. This Regulation was subsequently
repealed by Act X of 1838, as a result of which criminal courts in Kumaun
came directly under the control of Nizamat Adalat. Rules were made
under the Act for administration of criminal justice which were later on
superseded by the Criminal Procedure Code under which the Commissioner
of Kumaun was appointed as the Sessions Judge. This officer thus exer-
cised almost despotic powers as the High Court in civil cases and as Sessions
Judge in criminal cases which would be exemplified by the following incident :
An appeal was being argued before Major-General Sir Henry
Ramsay, Commissioner of Kumaun, relating to a money suit.
The defendant’s lawyer raised a plea that the suit was barred by
limitation and the decree passed was wrong. Sir Henry is said to
have asked the counsel “show me the law which bars the suit”.
With great gusto the counsel produced his copy of the Limitation
Act and opened the page containing the relevant article. On this
Sir Henry tore away the particular page and remarked that the
article of Limitation Act, relied upon existed no more.
It appears the Commissioner of Kumaun ceased to be a Sessions Judge
on the enforcement of Notification no. 13 14/VI — 48-1914, dated 26th
March, 1914 (published at page 53 of the Rules and Orders relating to
Kumaun), under which the districts of Almora, Garhwal, Naini Tal and
Pilibhit were placed under Kumaun Sessions Division. Later on Pilibhit
was removed from the jurisdiction of the Kumaun Sessions Court.
Kumaun was throughout a Scheduled District and Government exercised
powers to frame rules and issue notifications under section 6 of the
Scheduled Districts Act. It also extended the provisions of certain Acts
to Kumaun under section 6 of the Act.
The Government continued to exercise its rule-making powers till
1935 when the Scheduled Districts Act was repealed. It was then for
the first time that the laws promulgated by the Legislatures of the country
applied to the Area of their own force,- but the rules framed under the Act,
and notifications issued thereunder remain operative until these are replaced
by appropriate Acts of the Legislature, e.g., the Kumaun Nayabad and
Waste Land Rules were replaced by the Kumaun and Nayabad and Waste
Land Act (U. P. Act XXXII of 194^)-
It may not be out of place to mention that under a U. P. Government
Revenue (C) Department Notification, dated 24th February, i960, a new
division styled Uttarakhand has been carved out of the territories within
the limits of the erstwhile Kumaun Division. Pithoragarh, Chamoli and
Uttar Kashi tahsils of Almora, Garhwal, and Tehri districts respectively,
have been upgraded into three districts which together constitute the
Uttarakhand Division. The object was to have an integrated pattern of
administration in the border area on the lines of North-Eastern Frontier
Agency where the District Magistrate is the head of all the Departments
and is directly responsible to the Chief Secretary of the State who
functions as the Commissioner of the Division. The arrangements ensured
quicker implementation of the policies of the Central Government
which is naturally interested in the political administration of the area
which touches China, Tibet and Nepal.
These political changes under Executive orders have not at all affected
the pattern of administration of civil and criminal justice in Kumaun as
the District and Sessions Judge of Kumaun (assisted by the Civil and
Sessions Judges of the Tehri and Kumaun) continues to exercise jurisdiction
over entire area comprising Kumaun and Uttarakhand Divisions, like all
other District and Sessions Judges in the State.
The people of these two divisions enjoy the fundamental rights assured
to every citizen of India under the Constitution and look upon the
Allahabad High Court for the protection and enforcement of those rights.
"Pen "portraits of eminent '3u6ge
PlIO fOGRAPII TAKEN ON THE RE'IIREMENT OF SlR JOHN Lmm;E, C^IIIEI* JUS'IKI*, IN 1
f
The Right Hon’ble Sir John Edge
By
SRI ARVIND KUMAR
Advocate 9 High Court , Allahabad
B F the English Judges, who came tc the Allahabad High Court, Sir
John Edge is undoubtedly one of the most distinguished. Both as a
Chief Justice of the N.-W. P. High Court and a member of the Privy
Council, his name is associated with a number of celebrated judgments.
Sir John Edge was born in the year 1841. Precocious as he was from
his early childhood, studies were his only passion in life. In his law exami-
nation he secured a certificate of merit from the Council of Law Society,
United Kingdom in the Easter term of the year 1858. After practising for
a few years as a Barrister, he got the Silk , and, as a Queen s Counsel,
he gave an excellent account of himself.
Apart from this legal career, Sir, John Edge had keen interest in
educational and political spheres, which is amply vouched by his
phenomenal success as Vice-Chancellor of the Allahabad University.
Sir John Edge earned a name as the Chief Justice of the High
Court of the North-Western Provinces from 1886 to 1898. His
265 ^
contemporaries were Mr. Justice Mahmood, Mr. Justice Tyrell, Mr.
Justice Straight, Mr. Justice Knox, Mr. Justice Brodhurst. For the
first time, in the history of the High Court, it was ruled by Sir John
that, under sections 588 and 591 of the (old) Civil Procedure Cede, no
appeal lay, under clause 10 of the Letters Patent of the N.-W. P. High
Court, from an order of a single Judge refusing an application for leave to
appeal in forma pauperis .' On the law of limitation, his various judgments are
masterpieces. In Parbati vs. Bhola 2 he laid down that in computing the
period of limitation prescribed for an appeal or for an application for leave to
appeal as a pauper, where the decree appealed against is not signed until
a date subsequent to the date of delivery of judgment, the intermediate
period should, under section 12 of the Limitation Act, be excluded, if the
delay in signing the decree has delayed the appellant or applicant in
obtaining a copy of the decree, but not otherwise.
Sir John continued as Chief Justice up to 1898. Behind his
serious and judicious smiles, he had always sympathy and soft
corner for the junior section of the Bar. He invariably helped and
encouraged the juniors. He had all the attributes of a great Judge, and
was always open to conviction. To his colleagues on the Bench,
he was indeed respectful and affectionate. If there was difference of
opinion. Sir John Edge would readily submit to the majority opinion.
A very important judgment of April 2, 1889, delivered by the Full Bench,
consisting of Chief Justice Sir John Edge, Mr. Justice Straight,
Mr. Justice Brodhurst, Mr. Justice Tyrell and Mr. Justice Mahmood, needs
a special mention, in which most of the Judges differed in their opinions.
This judgment 3 was on the point of admissibility, in evidence, of
judgments not inter partes in criminal cases. In this case, for the first time,
1 Banno Bibi vs. Mehdi Hussain, (1889) 6 Ind. Dec. 375 (All.).
2 1 .L.R. 12 All. 81.
* I.L.R. is All. 1.
266
the Latin adage — aut caesar aut nullus ’ i.e. either the judgments sought to be
produced in evidence should be conclusive inter partes or they should not
be admitted in evidence at all (unless they relate to a public custom or right
or the factum of judgment be a matter in issue), was judicially considered ;
and most of the Judges differed in their views. It is said that this was the
only judgment which was reserved for long, which led to the rumour
in the Bar that there was considerable difference of opinion between Sir
John and Mr. Justice Mahmood. Such differences also occurred between
the two Judges in several cases of Mohammadan and Hindu law.
In Ram Kuar vs. Sardar Singh, 1 decided on March 28, 1898,
His Lordship ruled that a certificate may be granted under the Succession
Certificate Act, VII of 1889, to a minor through his next friend. This was
his last judgment before he resigned from Chief Justiceship.
On April 2, 1898, it appeared in the Law Times that Sir John Edge,
Q. C., had been appointed a Member of the Council of India, in succession
to Sir Charles Turner, K. C. I. E., whose tenure had expired in preceding
February. By that time Sir John Edge was already known as great scholar
of law.
In 1904, a Committee consisting of Sir Richard Henn Collins, Sir
Spencer Walpole, K. C. B. and Sir John Edge, K. C. was appointed by the
Home Secretary to' enquire into and report to him upon the circumstances
of the convictions of Mr. Adolf Beck in 1896 and 1904. The Master
of the Rolls was appointed Chairman of the Committee. Sir John’s work
in this Committee earned him great popularity. The Beck case was the most
sensational case in 1896 and 1904, in the United Kingdom. In this report
the Committee considered the conclusion of the Courts to be erroneous.
The Committee’s report was published on December 3, 1904.
1 1898 Weekly Notes (NWP), p. 64.
Another recommendation of this Committee was to empower the
Attorney-General in proper cases to move the High Court of Justice to
vacate a conviction of an accused subsequently discovered to be innocent.
Although the report of Sir John Edge caused great sensation in the politics of
the country, so much so that he was obliged to give a statement in public in
vindication of it, nevertheless he earned the gratitude of his countrymen
for his contribution to the growth of the English law.
Now, we come to the stage of his greatest achievement, the Judicial Com-
mittee of the Privy Council. In July, 1908, he, along with Charles Milkes
Gaskell, was sworn a member of the Privy Council, and, in July, 1911, was
appointed to its Judicial Committee. In 1926 he relinquished his cffice.
Sitting in the Judicial Committee he delivered very luminous jud-
gments. His experience as Chief Justice of one of the premier High
Courts in India undoubtedly stood him in good stead in laying down the
law for this country.
One of the important cases in the Privy Council to which Sir John
was a party is on the interpretation of section 96 of the Code of Criminal
Procedure. It is the case of Loftus Otway Clerke vs. Brojendra Kishore Roy
Chowdhary of the year 1912. The Judicial Committee in its opinion to His
Majesty remarked that the Code of Criminal Procedure uses the term “Court”
and “Magistrate” generally if not always as convertible terms and that the
Code contemplates the issue of a search warrant by a Magistrate under
section 96 before any proceedings are initiated and in view of an “inquiry
about to be made” by him under the Code.
Mrs. Annie Besant vs. The Advocate General of Madras 1 is another
case of importance to the decision of which Sir John Edge was a party. The
Judicial Committee in this case held that the power of the High Courts which
inherited the ordinary or extraordinary jurisdiction of the Supreme Courts
1 A-LR. 1919 P.C. 31.
268
to issue writs of certiorari had not been taken away by the provisions of
section 435 of the Criminal Procedure Code and section 115 of the Code
of Civil Procedure but that the power to issue a writ of certiorari against
any order of the Magistrate passed under the Indian Press Act, 1910, would
be taken away by section 22 of the said Act. It was further laid down that
section 4 of the Press Act was analogous to sections 124 and 153 A of
the Indian Penal Code, as both attempted to balance two important public
considerations, namely the undesirability of anything tending to excite
sedition or to excite strife between classes and the undesirability of preventing
any bona fide arguments for reform.
Delivering the judgment of the Judicial Committee on July 9, 1920,
in Sheokuarbai vs. Jeoraj, 1 Sir John ruled that the Jains are of Hindu
origin, that they are Hindu dissenters, but they have so generally adopted the
Hindu law that the Hindu rules of adoption are applied to them in the
absence of some usage to the contrary.
Sir John Edge was a party to the judgment in Privy Council Appeal
no. 28 of 1925, 2 This is the last reported case of the Privy Council in
the hearing of which Sir John participated as a member of the Privy
Council Bench. The principle of law laid down in this case is that even
great-grandson of a Hindu governed by the Mitaksbara school of law,
by birth acquires interest in joint family property ; and sons, grandsons
and great-grandsons are all liable for the debts of their ancestors to the extent
of the assets inherited by them.
For the paucity of space, only a few of his judgments have been
mentioned ; there are many more which adore the pages of Law Reports.
His colleagues in the Judicial Committee always considered him a safe guide
in the controversies involving personal law of the Indians.
1 U.P.L.R. 1930 P.C. 161.
s A.I.R. 19*6 P.C. 105.
269
Few have been the recipient of so warm tributes from their equals and
colleagues as Sir John Edge. In his talk, which Rt. Hon’ble Ameer Ali
gave in the Royal Society in 1925, he paid high tributes to the merit of Sir
John Edge as a Judge. “His imprints of social upliftment were very often
found in his judgments”, said Lord Blavesburgh of Sir John Edge
in his address in the Law Society. Even after his departure from India he
was one of the most remembered persons. He was a man with wide sym-
pathies and was free from colour complex. He was intellectually honest and
had every reverence for the dissenting view of his colleagues. He lived a
simple life and always delighted in sharing the comradeship of the common
man*
A noble man and a great judge that he was, his death was widely
mourned in India and England alike. We can justly be proud of him such
as he was of his association with our Court.
270
Mr. Justice Syed Mahmood
First Indian Judge
Mr. Justice Mahmood
By
SRI GUR DAYAL SRIVASTAVA,
Advocate , High Court, Allahabad
N building the legal process in India the fact that the Indian
Judges borrowed from foreign precedents and traditions may
readily be admitted, but what they said in their pronounce-
ments was not a mere echo of the foreign precedents nor the off-
spring of the latter. The judicial precedents of the Indian Judges
are not the deposit of any one particular system ; they are more
liken to a mosaic of mingled shades and influences. The implanta-
tion of English Common law through statutes and codes into a
polity so fundamentally different in bent and ethos from that of
the Anglo Saxons was indeed a perilous experiment and if it was
successful, it was so because of the reconciling influence of the
Indian Judges. The task before the Indian Judges was by no
means easy. The personal and the customary laws in India with
vast gaps and interspaces in them could not be retained in the form
271
they were and the process of codification naturally increased the
influence of Common law. Not in an inconsiderable measure the
codification secured uniformity in the administration of justice but
that alone could little fulfil the great ends of the rule of law. The
need of the time seemed to be for the enlargement of the body of
Common law doctrines with new faith and principles which were
entirely alien from the former and held so sacred by the inhabitants
of the Indian soil. But could the system emerging from this
fusion work successfully merely by the application of isolated
rules of Common law strung together by slender threads of foreign
precedents. It needed something more and that was the determi-
nation of a path around which the living oracles of law could
move in new conditions. That the English Judges could have
built that path alone is an assumption rather gratuitous and perhaps
an expression of the wonted belief of those who have not probed
deeper into the reality. The truth is, it was largely, if not wholly,
the work of the Indian Judges. The legal system in India in the
form of statutes and codes is undoubtedly the bequest of the
foreigners, for which we shall ever remember them with gratitude ;
but to have enabled such a legal system to rest on enduring
foundations by discovering broader principles and distinctions and
separating the essentials of jurisprudence from its historical and
geographical accidents is mainly the achievement of the Indian
Judges. It were they who accomplished the unison of Common
law with Indian customs and beliefs without breaking the intrinsic
unity of either or destroying their own heritage and for their
talent and erudition they may ever remain the envy of the ablest
on the Woolsack, nay, the ablest in any judiciary. Of the distin-
guished Judges who had a share in this work, one was Mahmood.
Perhaps no one lives today to convey his reminiscences of
Mr. Justice Mahmood and we can only think of his personality
in terms of his pronouncements. How he sat and judged is not risible
to human eyes but his written words are preserved to enable us to
perceive his lofty stature. He belongs not to a near past but his
distant footsteps still echo through the corridors of time. No
gallery of judicial portraits which does not include Mahmood can
pretend completeness. He was the first Indian Judge to be elevated
to the Bench of the Allahabad High Court, but that is not his only
claim to fame and remembrance. His distinction rests upon his
pronouncements, the flames of which remain undimmed unto this day.
Born at Delhi in 1850, he was the second son of Sir Saiyed
Ahmad Khan. Mahmood’s childhood did not give any indication
of his future nor his educational career was marked by any
phenomenal achievement. After completing his early education
at Delhi and then at Queen’s College, Benares, he proceeded
in 1869 on a Government of India scholarship to join the
Christ Church College, Cambridge. At Cambridge he had a
successful academic career and attained proficiency in oriental
and classical languages ; yet it was not sufficiently distinguished
even for the most prophetic of professors to predict that
the young graduate was one day to blaze as a bright star in the
firmament of law. He was called to the Bar in 1872 and
on return to India in due course he joined the Allahabad Bar. Not
much is known of his achievements at the Bar and perhaps there may
be none, for he did not stay there long to make them. In 1879 he
was appointed a District Judge at Rae Bareli and it was within
three years that he was selected to officiate on the High Court
Bench at the early age of thirty-two, an age when most of the
young lawyers are still emerging from obscurity. During the
brief span of his district judgeship Mahmood gave judgments which
275 ^
could do credit to any distinguished Judge of the High Court.
Unlike most of the district judges, he ’was not a mere satellite
revolving round the dictums of the High Court. His exposition of
law in his judgment in the case of Deputy Commissioner,
Rae Bareli v. Raja Ram Pal Singh delivered as a District Judge, Rae
Bareli so much struck the eyes of the members of the Judicial
Committee of the Privy Council that they while expressing their
concurrence in their judgment inP. C. Appeal No. 3 of 1882 with
his opinion were said to have conveyed to the Secretary of State
of India their view that so talented a person should not be wasted
in the subordinate judiciary. The elevation of Mahtnood to the
High Court Bench so early was a fulfilment of the desire expressed
by the Judicial Committee. After expiry of his officiating term he
reverted to the Bar. His permanent appointment as a Judge of
this Court came in 1886.
The latter part of the 19th century may very aptly be
described as the Augustan age of the Indian judiciary. With Sir
Guru Das Banerji in Calcutta, Muthu Sami Aiyer in Madras,
K. T. Telang in Bombay and Mahmood in Allahabad, the High
Courts in India had the semblance of a sanctuary where distinguished
luminaries in law with impeccable vision sat like sages to expound
the immutable principles of jurisprudence for the future generations.
Comparisons are odious and to say that each one of them was
great and illustrious in his own way would be nearer the truth.
Nevertheless it is equally true to say that few men in the
sphere of law have won the same unquestioning recognition as
Mahmood. It was not in vain that Sir Whitley Stokes in his
general introduction to Anglo Indian Codes remarked, “Of
these judgments none can be read with more pleasure and few
with more profit than those of the Hindu Muthu Sami and
the Mohammadan Syed Mahmood. For the subtle races that
produce such lawyers no legal machinery can be too elaborate”.
The number of his judgments to be found in the law
reports are many and cover a wide range of subjects. His exposi-
tion of legal principles in some of his judgments invests them
with the status of a treatise on law. It is difficult to say which
of them is his magnum opus, nor delineation of each of them is
otherwise possible ; hence only a few of them may be referred just
to illustrate his legal acumen and innate sense of justice. Jurispru-
dence to Mahmood was a branch of philosophy wherefrom all
human laws were derived and law was most worthy of approval
only when consonant with reason— Lex plus laudatur quando
rationae probatur. His luminous judgment in the full bench case,
Empress v. Phopi reported in I. L. R. 13 Allahabad 17 1 is best
illustrative of his concept of law. Mahmood dissenting from
the majority answered that mere notice on the prisoner was not
enough and that it was imperative that he should either be heard in
person or through counsel. The words “after hearing the appellant
or his pleader if he appears” round which the controversy centred,
were interpreted by him to mean a condition precedent for the
disposal of the appeal with the right of hearing being inherent in
it and the reason for it as seemed to him was that when a man
asserted a right, he had to be heard, for the remedy itself implied a
right which was not to be confounded with the mode of presenta-
tion. The fans et origo— source and origin— of the maxims audi
alteram parUm and ubi jus ibi remedium was not local but human
jurisprudence and his deep sensibility of it is evinced by the
following passage of his judgment :
“It is no use tying a person by the leg making it impossible
for him to appear and then saying to him we are to hear you if
*4^=. 275
you appear, when all the while we know that we have made his
appearance impossible .
It is unfortunate that the majority on the full bench should
have failed to perceive the sublimity of his viewpoint. The reason
for it is rather traceable to contrariety of fundamentals of the two.
To Mahmood ‘hearing’ seemed imperative to render a process
just, it was sacrosanct being the creation of summon jus. Those
who’ dissented from him could not see any sacredness in the
right of hearing for they were more prone to keep law and
equity asunder instead of joining the two. The great judge
viewed the station of justice in the perspective of Divinity
and any outrage upon it, if not redressed by human agents on the
earth, shall have to be recompensed by the Creator. Nothing better
would convey the poignancy of his feeling than the following
Urdu couplet which he quotes in his judgment .
Qarib hat jar ro%e maibshar
Cbhupega husbton ha khun hjun har
Jo chup rabegi %ubane khanjar
Lahu puharega aasteen ha.
His own translation of these lines is “Oh friend ! the day of
judgment is near, how then will it be possible to conceal by silence
the blood of those killed. Even if the tongue of the dagger will
keep silence the blood on the sleeve will speak out”. His pro-
nouncement may not have the force of a precedent but surely
it shakes our soul and that is enough recognition of it.
In Matadin v. Kazim Husain, a full bench case reported in
I. L. R. 13 Allahabad 432, Mr. Justice Mahmood dissenting
from the majority held that the word “property” was used in a
most generic sense and included the right known as equity of
redemption. The majority view was that the term “property”
meant an actual physical object and did not include mere rights
relating to physical objects. The premise upon which Mahmood’s
conclusions were founded was that the phrase “transfer of property”
as occurring in Section 5 8 of the Transfer of Property Act included
what was known to the English law as the equity of redemption.
While pointing out the distinction between the English and the
Indian law of mortgages in the course of his judgment he says,
“that an Indian mortgage of any kind does not mean the conveyance
of property absolutely to the mortgagee so that even if the English
technical phrase ‘legal estate’ as distinguished from the ‘equitable
estate’ were to be imported into the Indian law of mortgages, it
must be held that notwithstanding the execution of mortgage
of any kind the legal estate vests not in the mortgagee but
remains in the hands of the mortgagor, for he continues to be the
owner of the property entitled to deal with it as he likes, subject
of course to the incident of the mortgage which he has already
executed.” Ultimately the decision of the majority in this full
bench case was overruled by a subsequent full bench in the case
of Rama Shankerlal v. Ganesh Prasad reported in 29 I. L. R.
Allahabad page 385. The members of the latter full bench felt
obliged to accept Justice Mahmood’s exposition of the word
“property” and laid down the law in terms of the ratio contained
in the dissenting judgment of Mahmood in Matadin’s case.
His notable judgments on Mohammadan law are many but it
may not be possible to refer to each of them. One of such
judgments is in the full bench case of Jafri Begum v. Amir
Mohammad Khan reported in I. L. R. 7 Allahabad 822. The
main question referred to the full bench was “whether upon the
death of a Mohammadan intestate who leaves unpaid debts with
reference to the value of his estate, does the ownership of such
277
estate devolve immediately on his heirs or such devolution is
contingent upon and suspended till payment of such debts”. His
answer that existence of debt did not affect devolution, proceeding
upon the works of Baizawi (the greatest commentator of Qoran),
Alsirajiyyah and Hedaya, belong more to the realm of a treatise
than a mere pronouncement. As a piece of historical investigation
the judgment stands supreme for it illumines many a dark corners
oftheMohammadan law. Another noteworthy judgment delivered
by Mr. Justice Mahmood on Mohammadan law is in the full bench
case of Mohammad Allahdad Khan v. Mohd. Ismail Khan reported
in I. L. R. io Allahabad 289. The suit giving rise to the appeal
before the High Court related to the exact scope of the rule of
the Mo hamm adan law arising from acknowledgment of parentage.
The questions involved were “what according to the Mohammadan
law is the effect of an acknowledgment by a Mohammadan that a
particular person born of the acknowledger’s wife before marriage
is his son and how does such acknowledgment affect the status of
the person in reference to whom it is made”. In answering the
reference he held that although according to the Mohammadan law
acknowledgment in general terms stands upon much the same
footing as an admission as defined in the Evidence Act, acknowledg-
ments of parentage and other matters of personal status stand
on a higher footing than matters of evidence and forms part of the
substantive Mohammadan law. In his opinion where legitimacy
could not be established by direct proof of a valid marriage,
acknowledgment had been recognised by the Mohammadan law as a
means whereby marriage of the parents or legitimate descent of
the child may be established as a matter of substantive law and
that such acknowledgment always proceeded upon the hypothesis
of a lawful union between the parents, for there was nothing in
Mohammadan law similar to adoption as recognised by Roman
and Hindu systems, or admitting of an affiliation which had no
reference to consanguinity or legitimate descent. The judgment
of Mahmood, J. in this full bench case is so elaborate and compre-
hensive that even the best of its summary would give only a faint
echo of the original and without quoting his own words one may
not do justice to his composition. He observed : “And I have no
doubt that I am representing the views of the Mohammadan jurists
rightly when I say that there is no warrant in the principles of
the Mohammadan law to justify the view that a child proved to
be the offspring of fornication, adultery or incest could be made
legitimate by any act of acknowledgment of father. I repeat that the
rule is limited to cases of uncertainty of legitimate descent, and
proceeds entirely upon an assumption of legitimacy and the establish-
ment of such legitimacy by the force of such acknowledgment/’
Hindu law was not left untouched by Justice Mahmood and
though his pronouncements on the subject are not many, still the
few that are contained in the law reports are not lacking in
massiveness or excellence, characteristic of his judgments. His
conclusions in Binda v. Kaushilya (I. L. R. 13 Allahabad 126)
where he upholds the right of a Hindu husband to sue for restitution
of conjugal rights, are largely founded upon original texts. Sir Tej
very aptly observed : “It must be said to the credit of Mr. Justice
Mahmood that at least with respect to the Hindu law, he like the
late Mr. Justice Ranade, always attempted to reconcile the wisdom
of ancient sages to the mixed civilizations of their descendants.”
In the sphere of procedural enactments, Mahmood always
leaned in favour of widening the scope of the statutory rules. The
procedural laws, as he conceived them, were subservient to sub-
stantive laws, a mere means to the ultimate end. He never
279
acquiesced in a construction which limited the operation of a rule
so as to entail deprivation of substantive rights. In his dissenting
judgment in the full bench case of Nar Singh Das Mangal
Dubey (I. L. R. 5 Allahabad 163) he says “the courts are not
to act upon the principle that every procedure is to be taken as
prohibited unless it is expressly provided for by the Code, but on
the converse principle that every procedure is to be understood as
permissible till it is shown to be prohibited by the law . Why to
such a sound rule of interpretation the majority should not have
agreed, one woefully pauses to think. The soundness of Mahmood’s
above * exposition was recognised by the late Sir Ashutosh Mukerji
who, in all fairness to truth, followed Mahmood’s reasoning in
Nar Singh Das’s case in his judgment delivered in Chhayunnessa Bibi
v. Kazi Basirar Rahman (5 Indian Cases, 532).
Chitor Mai v. Shib Lai is another leading case which had
raised a controversy of unusual nature. It was on the doctrine of
salvage and his judgment is remarkable for the emphatic way in
which he censured the English law as being unreasonable so far
as it restricted the doctrine of salvage purely to maritime salvages.
He found little justification for putting the perils of the sea on a
separate juristic' footing from those arising on the land and to
express his indignation he observed “but why that equity should
stop at the sea-shore, I frankly and respectfully confess I am unable
to conceive for I cannot help feeling that doctrines of equity are
no more governed by the peculiarities of the sea than by the peculi-
arities of the land”.
In the year 1887 the High Court was faced with a grim situation
in the case of Lai Singh v. Ghanshyam Singh (I. L. R. 9 All. 625).
The question to be resolved was that when a vacancy had occurred
in the Court reducing the number of Judges originally appointed
under clause 2 of the Letters Patent, whether the omission
by Her Majesty and the local Government to fill up the
vacancy had vitiated the constitution of the Court. By clause 2 of
the Letters Patent it was provided that the Court until further or
other provision should be made in accordance with the Act, shall
consist of a Chief Justice and five Judges, and the first holders of
these offices had been named, and on the basis of this provision
the argument of the learned counsel was that as at the relevant time
the Court consisted of only the Chief Justice and four Judges,
and in the absence of any provision authorising less than the full
number of Judges to exercise the powers of the Court defined in
clause 2, the Court whose jurisdiction had been created and defined
by the Letters Patent no longer existed. The matter was heard by the
entire Court and the unanimous opinion of all the Hon’ble Judges
including Mr. Justice Mahmood was that by clause 2 of the
Letters Patent it was not intended that if the Crown or the
Government should omit to fill vacancy among the Judges under
the powers conferred by section 7 of the High Courts Act so
that the Court should then consist of a Chief Justice and four
Judges only, the constitution of the Court should thereby be
rendered illegal, and the existing judges incompetent to exercise
the functions assigned to the High Court. In negativing the
objection of the late Pt. Ayodhya Nath, Mr. Justice Mahmood’s
statement of law so succinctly put by him in his judgment is “Now
it is very important to note that whilst in connection with the
appointment of Chief Justice the Statute employs the expression
* shall appoint \ The same section in connection with the
appointment of Puisne Judges uses the phrase e it shall be lawful*
for the Government to fill up the vacancy. The change in the
language is remarkable and I understand it to be a well known rule
of construing statutes that when in one and the same section which
relates to any special purpose two expressions of such different meanings
are employed, the Legislature must be taken to have intended a
distinction. This being so, the phrase ‘ it will be lawful 5 cannot be
held to mean that it was imperative upon the Government to fill
up any vacancy in the office of a Puisne Judge of this High Court”.
Although the point was sufficiently settled by the Full Bench
judgment still he was not complacent. Lest such a situation should
arise again he in his minutes to the draft bill of 1889 moved in
the Parliament suggested for defining the phrase * High Court \
I have left till the end one of his classic judgments without
mention of which a catalogue of his pronouncements can scarcely be
regarded as complete. This brings me to the leading Full Bench
case of Govind Dayal v. Inayatullah on the law of pre-emption
reported in I. L. R. 7 Allahabad 775. The earlier decisions on
the right of pre-emption seemed to founder on the mistaken belief
that the right of pre-emption was a personal right of repurchase
involving a new contract of sale. Mahmood in tracing the history
and nature of the right of pre-emption has established that such a
right is simply a right of substitution and is an incident of property
entitling the pre-emptor by reason of such legal incident to stand in
the shoes of the vendee in respect of all rights and obligations. On
this aspect of the law his opinion seems to be unquestionable but a
doubt lingers on as to the correctness of his opinion on the other
part of his answer that right of pre-emption never existed under the
old Hindu law and was essentially a creation of Mohammedan
jurisprudence.
In fact the right of pre-emption was equally recognised by
Hindu law, and this humble assertion finds support in Mahanirvana
Tantra (Shlokas 107 to 112, Chapter II). The fallacy in Mahmood’s
approach appears to reside in the assumption that custom of pre-
emption could grow up only under the Mohammedan law. He
wrongly thought that such right had never been recognised by the
Hindu law. The shlokas in Mahanirvana Tantra have been translated
by the late Shri Shyama Charan Sarkar and fully discussed by him
in his works Vyavastha Chandrika, Volume II, Part I, page 626 as
well as in Vyavastha Darpan, Volume I, page 643 (1883 Edition).
The translation of these shlokas is as follows :
“The proprietor of an immovable property having a neigh-
bour able to purchase it, is not at liberty to sell such property
to another. Among neighbours he who is an agnate or of
the same caste is preferred. In default of them a friend
(here) the will of the seller prevails. Even if the price of
an immoveable property be settled by another, yet if a
neighbour, desiring to purchase it, tenders that price he
becomes the purchaser and not the other. If the neighbour
be unable to pay the price or give consent to the sale then
the householder (i. e. the land-holder) is at liberty to sell
it to another. ‘O Goddess (Shiva addressed all the Shlokas
to Parvati)’. If an immoveable property be sold in the
absence of the neighbour and he (the neighbour) pays the
price immediately on hearing (of it), he is entitled to have
the same. If, however, the purchaser has made houses and
gardens thereupon or destroyed them (then) the neighbour
is not entitled to have (such) immoveable property even by
paying the price.”
Sir William Macnaughten, an eminent scholar of Hindu and
Mohammedan law, has, in the preface of his work on Mohammedan
law, quoted the shlokas mentioned above and his observation : “but
it remains to be decided whether this shall be held to be the prac-
tical law or not”, cannot be understood to mean that he doubted
the authenticity of these shlokas. It would not be fair to whittle
down the genuineness of these shlokas on the ground that they
have not been cited in the later commentaries on the Hindu law nor
recognised in the current law books and that the Mahanirvana
Tantra is not mentioned in the list of tantras. Needless to say that
the value of this work is not to suffer by the fact that it has not
been reviewed in many of the current commentaries on Hindu law.
As emphasised by the late Mr. Sarkar, this Tantra ranks equal in
sanctity to the vedas and its ordinances should doubtless override
even those of the sages for Mahanirvana Tantra according to the
belief of the Hindus is said to have been revealed to this world by
Mahadeva one of the Gods of the Hindu trinity. Then factually too
it would be incorrect to say that Mahanirvana Tantra is not recognised
as one of the ancient tantras. Mahmood’s denunciation of
Mahanirvana Tantra as not being an ancient work and the shlokas
therein as interpolations is built upon his unawareness that
Mahanirvana Tantra is one of* the set known as Rath Kranta
Tantra which has been referred to in Agni Puran and Padma Puran.
With all this fallacy to which it has been my truthful, though dis-
agreeable, duty to allude to, the judgment in Gobind Dayal’s case
stands as a locus classicus on the law of pre-emption. It is vain to
hope that the truth dwelling in the innermost recesses of the texts
on Hindu law shall ever emerge out to vindicate itself.
These extracts of the reported cases do not represent more
than a fraction of the judicial pronouncements of Mr. Justice
Mahmood, for my selection has been confined to decisions of
admitted significance and of present value. Many may miss cases to
which they attach importance and some explanation might be due to
them. As one ransacks the law reports of the seven years one would
find them an expanse where one would easily lose his way and the
possibility of omission of something which should have been
included there is always inherent in a task so difficult as this.
Few might be aware of the memorable minutes of Mr. justice
Mahmood, which strangely enough have remained veiled from the
public eye so long. The minutes of Mr. Justice Mahmood are
on the draft bill intended to be introduced in the Parliament and
special provisions to be contained in the Letters Patent. This bill
was introduced in the Parliament in the year 1888, the main aim of
which was the extension of the territorial and other jurisdiction of the
existing High Courts, and was intended to be a kind of supplement
to Statute 24 & 25 Viet. c. 104. The suggestion of Mr. Justice
Mahmood to this draft bill was that the bill should empower Her
Majesty to extend the High Courts’ jurisdiction to any territories
which had either been assigned to the Government of India or over
which jurisdiction had been granted by native States to the Govern-
ment of India. Section 3, Statute 28 & 29 Yict. c. 15 enabled the
Governor-General-in-Council to empower the High Courts “to exer-
cise any such jurisdiction in respect of Christian subjects of Her
Majesty resident within the dominions of such of the provinces and
States of India in alliance with Her Majesty as the said Governor-
General-in-Council may in the manner aforesaid from time to time
determine. In his minutes he suggests for provision of an additional
clause in the proposed bill to enable the Government of India to
achieve the object of the bill. The reason for it he assigned was that
the power under section 3 was limited to “ Christian subjects of Her
Majesty ” and secondly that it extended to territories which had
neither been assigned nor had jurisdiction in respect of them been
granted to the Government of India by the Native States. He
suggested that the phrase “ personal jurisdiction” occurring in section 2
285 ^
of the draft bill being susceptible of some ambiguity and likely to
give rise to doubts in its interpretation in a country like India
where the population was not homogeneous necessitated a substitution
“ to obviate the possibility of any argument being raised to the effect
that a native Judge of a High Court was precluded from exercising
any jurisdiction by reason of his personal nationality ”.
In view of the expected extension of the High Court’s
jurisdiction to Oudh he emphasised the necessity of defining the
phrase * High Court ’ as it occurred in Statute 24 & 25 Viet. c. 104,
especially in section 13 of that enactment. The necessity for such
definition, as pointed out by him in his minutes, arose from the fact
that the success of the proposed amalgamation of the two Courts
depended upon the rules that the Court may frame under these
sections. In this connection he recommended for the increase of
jurisdiction of single Judges in civil matters and for criminal appeals
especially those involving sentences of transportation for life he
voted for their disposal by a Bench consisting of at least two
Judges. His statement in his minutes is “so strongly do I entertain
these views that when I believe, I had a chance of being appointed
to act as Judicial Commissioner of Oudh, I had made up my mind to
decline the office if it were offered to me upon the ground (not
purely one of sentiment, but of conscience) that in my opinion no
single human being should sit as a Judge over the life of another”.
At another place in his minutes he records “All the more caution
is necessary as in criminal cases no appeal lies to the whole Court
under section 10 of the Letters Patent as it does in civil cases,
however, petty or small they may be. My fear is (and I say this
with due respect) that under the present rules of the High Court
much greater importance is attached to the property of persons
than to their lives and liberties”.
Another reason which he found for a careful definition of
the phrase “ High Court ” was the lurking danger of confusion between
the requirements of the Statute as to vacancies in the office of
the Chief Justice and vacancies in the office of Puisne Judge.
This danger had once stared the constitutional authority of the
High Court in the case of Lai Singh v. Ghanshyam Singh and
the prospect of its repetition was certainly to be guarded against.
Other suggestion which he put forward was for stationing
one Judge permanently at Lucknow and for deputation of a second
Judge by rotation to make up a bench for disposal of such cases at
Lucknow which under the rule could not be disposed of by a
single Judge.
In his views on the question of language, he was not wholly
of his time. The dismissal of appeals without any hearing on the
solitary ground of the appellants’ failure to translate the record of
the case into English was, as he felt, travesty of justice. His words
of censure as contained in the Minutes are : “I think in view of the
vast population which will be affected by the rules or practice as
to enforcing translations, the matter is sufficiently significant to
be taken in hand by the Government which is responsible for the
peace and administration of the country, rather than be left to
considerations relating to the convenience of the Judges. The
truth is that the rules as to translations into English involve so
considerable an expense on the part of litigants, that they practically
amount to imposing a tax upon the litigant population and I am
afraid in some cases amount to a denial of Justice. I say this with
due respect for the opposite opinion. The' costs of these translations
become costs in the cause, so that a rich litigant is practically free
to swell the costs of a litigation against a poor man by getting the
record translated even in petty cases.” He strongly deprecated a
•=>£i§b. 287 ^
state of things in which Hindustani would be absolutely precluded
even where speaking English was absolutley impossible-or where the
suitor was unable to retain the services of English speaking
pleaders. He accordingly recommended that the draft bill should
contain a section somewhat on the lines of section 3 of Statute 28
and 29 Viet. c. 15, that it shall be lawful for the Governor-General-
in-Council by Order to declare from time to time what language shall
be the language of every High Court and to make rules for employ-
ment of interpreters and the scope and extent of translations into
the language so declared to be the language of the Court.
These suggestions of Mr. Justice Mahmood were, however,
unacceptable to his honourable colleagues on the Bench. On every
proposal their note was one of complete dissent. There can be no
doubt that time has avenged most of his proposals which had
wrecked on the disapproval of his contemporaries. Mahmood’s
statement in his minutes is a model of intellectual conscience. His
endeavour was to give the procedure in Courts a new contact with
things.
The period of seven years during which Justice Mahmood sat
on the Bench was rather short, nevertheless a lustrous one for the
Allahabad High Court. In 1894 he resigned from the Bench. The
circumstances in which he had to do so are rather sad to narrate.
In this brief span he brought to law reports a wide store of new
concepts which had hitherto not leaped to light. His exit from the
Bench was the sorrow of each and everyone in the sphere of law for
no longer was his voice to be heard in the High Court or the law
reports. Some time after he was nominated a member of the Legisla-
tive Council for the North-Western Provinces ; but there is not much
to say of his work there. In the closing years of his life he resumed
practice in the Judicial Commissioner’s Court at Lucknow. Late
288
Dr. Satish Chandra Banerji worked with him as his junior.
On 8th May, 1903 at the age of fifty-three he passed away
leaving behind his footprints on the sands of time. Divinity did
not bless him with longevity but that is not to be our sorrow.
He filled his brief span with the scores of lifetime. Of him
it may be said—
Loveliest of lovely things are they
On earth that soonest pass away
The rose that lives that little hour
Is priced beyond the sculptured flower.
Living men are often exposed to the reproach of their equals
and rivals. The more a man belongs to posterity so much the more
unacceptable he is to his contemporaries but that was not so with
Mahmood. He could verily be proud of recognition by his equals
and contemporaries. That Muthusami Aiyer should have come all the
way from Madras to Allahabad to meet Mahmood speaks of Muthu-
sami’s real admiration for him. Mahmood was intellectually
uncompromising but not vain. Perhaps few may have been so
faithful to the traditions of intellectual integrity as Mahmood.
Speaking of Mahmood’s deep reverence for his contemporaries
Dr. Satish Chandra Banerji writes— “I may, however, note in passing
that I have heard Mr. Mahmood observe that a Judge of fact is
greater than a Judge of law and imply that he had been more of a
Judge of law than fact. He used to express highest admiration for
Dwarka Nath Mitter and Muthusami Aiyer, and once told some
Mohammedan gentlemen in my presence that he was not worthy to
untie the latchets of the shoes of the two eminent Judges.” Indeed
large was his bounty and soul sincere.
Thus came to a close a life so vivacious, so radiant, yet so gloomy
—a life indeed as moving as any of his judgments he toiled to
289 ^
write. Eardley Norton speaking of Muthusami Aiyer said “he was
a tfreit Judge because he was a just Judge”, and without apology
the same may be said of Mahmood. Both were animated with a
purpose which seemed to them greater than their compositions-a pur-
pose of which the composition is only an instrument, a medium.
Whatever errors may have crept into his expositions, they neither
blemish their excellence nor vitiate his conclusions. It is not given
to mortals to either plan with perfect foresight or to always act with
unerring judgment; to be infallible is the prerogative of Divinity, to
be so to the utmost of one’s ability is the glory of man. His constant
aim was the deliverance of reason from the servitude of oppressive
constructions, to plant latent truths by rooting out illusive concep-
tions. “Judges must beware of hard constructions and strained infer-
ences ; for there is no worse torture than the torture of laws”, says
Bacon, and perhaps awareness of this maxim seems to have taken deep
roots into the soil of his intellect. Many of the truths even in his
dissenting judgments have not sunk into oblivion, they would rise
again. No principle he ever laid down was without testing it on the
anvil of eternal truths and verities which he believed and, truly, had
their origin in the bosom of God. With all reverence for judicial
precedents he never allowed them to usurp the place of basal princi-
ples. If he broke away from the contemporary tendencies it was
because he had the realisation of the inevitability of things. He had
a rare vision of the realities of life, and a still rarer talent of making
his vision objective. There was nothing like “last word” for him.
The certitude in him never rendered his mind impervious to a contrary
opinion. Perhaps no other Judge has a larger number of dissenting
judgments to his credit than Mr. Justice Mahmood, but then it was
inevitable. A seeker of principle that he was, he was never afraid to
scale his isolated' peak when he had discovered one. To him the
<&&&= 290 -a&g.
apparent was not always the reality, others did not go beyond the
obvious. Intellect is the faculty of seer, it discerns truth as a living
thing and the relationship of principles to each other. The flame
that illumes the cloud is god-sent. This faculty he possessed in the
largest measure and so also the flame, and in any case, much more
than those who sat with him in adjudications.
On the whole if we consider the scope of his pronouncements
it would be difficult to deny him the place claimed for him. History
is made only in those periods in which the reality struggles against
its contradictions, the periods of submission and acquiescence are
but blank pages in it. The years of Mahmood in the Allahabad High
Court were the epoch-making years in the history of the Court, for
never before concepts in law were faced with more ardent assertions
and their vehement repudiations. Contradictions of reality resolve
rather slowly and when resolved, there remains only the reality and
not its contradictions. In the perspective of eternity it has always
been so and it would always remain so and this is our hope for the
vanquished propositions of Mahmood. If they have not been recog-
nised so far, our penitent intellect would be impelled to bend before
them some day. Mahmood’s enunciations are the light of law and
he who follows them shall not walk in darkness. He dazzles not by
the reflected light of favourable circumstances but by his own intense
incandescence. His great contemporaries may have equalled him but
never excelled him. His is not a fleeting niche in the hall of fame,
his shadows lengthen out to remote posterity. Never was any man
so great a stimulus to succeeding generation of lawyers and Judges
as Mahmood and if some day we seem to be above him it would be
because he has raised us on his shoulders. He is gone leaving behind
his anchor by which we may steady out ships. But was it indeed a
life without its portion of blames and failings. That any life
291
can ever be so is difficult to conceive, at an y rate, in human
ken. It is an assumption we cannot cavil at, and for his short-
comings, whatever they may have been, we may only say they
were that of his epoch or those imposed upon him by circumstances*
his virtues and goodness were his own !
Neither lamp nor rose adorns his grave; from his mortal clay
lying beneath we hear the echo of four words “Lex est dictamen
rationis”—Lxw is the dictate of reason.
The Hon’ble Sir Shah Mohammad Sulaiman, Chief Justice
Sir Shah Muhammad Sulaiman
By
Mr. JUSTICE R. S. PATHAK
^ INHERE are few names in recent times which have aroused the imagination
§|||K of the young lawyer so profoundly as that of Sir Shah Muhammad
Sulaiman. Within the years given to him, he achieved a versatile excellence
and an intellectual brilliance which dazzled the generation inwhich he lived.
Like a meteor blazing its luminous course across the heavens, he left a trail of
glory behind. That glory occupies a place of pride in the history of this Court.
His versatility embraced many fields, and because of the liberal tradi-
tion which was so folly expressed in him he can be said to have belonged
not merely to his generation but to a line which, reflecting the genius of
the human race, has moved with unbroken continuity through the centuries.
In another age and in another place, he would have ranked among the great
Elizabethans. His powerful questing mind, alert in foe constant pursuit
of Truth and devoted to foe service of enlightened human values, impressed
its seal cn all that he did. In him, foe force great driving forces of civilisa-
tion— Law, Science and Education — found a remarkable meeting place.
293 ^
Added to this was a love of literature which manifested itself in his keen
interest in Persian and Urdu verse.
Shah Muhammad Sulaiman was born on February 3, 1886. His
father, Maulvi Muhammad Usman, was among the leading members of
the Bar at Jaunpur. His forbears, we are told, included a physicist.
From the very beginning, young Sulaiman distinguished himself in
school and college. Devoted to his studies, he was an outstanding scholar.
A first division in the Matriculation Examination and thereafter in the Inter-
mediate Examination was followed at Muir Central College by a first division
with the first place in the B. A. Examination of 1906 held by the University
of Allahabad. It is interesting to recall that about the same time another
brilliant student, Syed Fazl Ali, who was also later to play a significant part
in the world of law, was attracting attention at Queen’s College, Benares.
In the same year, he secured a first division with the first place in the B. Sc.
Examination. Of the two, Sulaiman obtained five more marks in the
aggregate than Fazl Ali and this won him the United Provinces State
scholarship for higher education in England. The scholarship enabled him
to proceed to Cambridge. An assiduous student throughout, his ability
earned him the Tripos in Mathematics in 1909 and the Tripos in Law the
next year. Fazl Ali, who backed by financial support from his family had
also proceeded to England, followed a parallel career. In 1909, both
appeared in the Indian Civil Service Examination, and both were unsuccess-
ful. They then decided upon the profession of law. Fazl Ali returned to
India. Sulaiman, however, remained to qualify for the degree of Doctor
of Laws from the University of Dublin. It was characteristic of the times
that a doctorate in law was generally considered to confer added advantage
in the legal profession. After being called to the Bar from the Middle
Temple, Sulaiman returned to India in 1911.
For some time, the young barrister practised at Jaunpur, associated
with his father in his many and varied . cases. But his eager spirit and
the yearnings of a youthful ambition chafed under the limitations of a law-
practice restricted to the district. And so the year 19x2 found him moving
over to the High Court at Allahabad.
There were leaders at the Allahabad Bar whose towering fame and
high reputation for learning and forensic skill had travelled far and wide
throughout the country. There were Mr. Jogendra Nath Chaudhri, Pandit
Sunder Lai, Pandit Moti Lai Nehru and Dr. Satish Chandra Banerji.
Emerging into prominence were Dr. Tej Bahadur Sapru and Mr. B. E.
O’Conor. Among them, and inspired by them, Sulaiman soon came
into his own.
In his early years in the profession, the young lawyer faces many trials.
Pressed by the need to provide for himself and his family and often spurred
by the ambition to distinguish himself in a fiercely competitive profession,
he finds little time for those several diversions which beckon to the young
man. To succeed, he must steel himself against their temptation, and with
single-minded and almost fanatical devotion he must divide almost all his
waking hours between preparing his briefs and keeping abreast of the law
journals. Sulaiman did not spare himself. He maintained a familiarity
with the law as enunciated in the text-books and developed by contemporary
case-law which would be the envy of any lawyer today. His indefatigable
industry and unremitting toil, as well as a considerable attention to detail,
impressed the Judges of the Court and his seniors at the Bar. Often over-
whelmed by the several briefs for the next day in Court, he sat in his office
working late into the night and not infrequently oblivious of the hour for
dinner. It is said that his wife, discovering that her repeated messages
requesting him to rise for dinner were of no avail, would adopt the desperate
strategy of switching off the electricity mains so that the office was plunged
into darkness.
Barristers practising at the Allahabad Bar had so far generally confined
themselves to criminal practice. Sulaiman was among the: first to break
295
f rom tradition. He travelled widely into the civil law and soon commanded
an extensive civil practice. He was in demand not merely in the High
Court but also in districts far removed, and with the growing volume of
his work began to emerge as a leader at the Bar. He was clear-headed, and
quick to appreciate the demands of each case. In argument, he possessed
a clear, incisive style which unburdened by embellishment or flourish quietly
carried his point home.
His comprehensive grasp of the law and his brilliant and discriminating
intelligence attracted the attention of two successive Chief Justices, Sir Henry
Richards and Sir Grimwood Mears, and, at an age still comparatively young,
he was offered an officiating appointment on the Bench. He officiated as
Judge of this Court from April 15, 1920 to August n, I920,and then followed
two brief periods in 1921 and 1922. He returned to the Bar and resumed
practice, but his return was short-lived. His judicial acumen and talent,
which had drawn favourable notice from all those who had appeared before
him during the periods of his officiating appointment, moved the Govern-
ment to offer him a permanent seat on the Court. On April 4, 1923 » he
was elevated to the Bench as Puisne Judge, and the occasion is recorded by
the Allahabad Law Journal Reporter with this appreciation :
“Dr. Sulaiman’s career in the High Court has been one of uniform
brilliance and it must be a great sacrifice on his part to accept the
Judgeship of the High Court. In doing so, he has upheld the best
traditions of the Bar which require that a successful advocate is bound,
in point of moral obligation tc the State, to serve on the Bench when
called upon by His Majesty the King to do so. As an officiating
Judge, on two occasions, he made himself universally popular among
all sections of the Bar by his courtesy, patience, and evident desire to
do justice.”
The Judge now replaced the lawyer. Sulaiman brought to the judicial
scene a combination of qualities which very soon placed him among the great
296
Judges of the Court and, indeed, among the outstanding of the country.
As Sir Tej Bahadur Sapru was to observe later :
“Nature had endowed him with gifts of an extraordinary character.
Possessed of a penetrative intellect, a mind which could dissect and
analyse things as very few other minds could, a power of expression and
exposition, he did not fake much time on the Bench before he made
everyone feel that we had got a Judge of unusual ability and unusual
gifts ... He earned the respect of everyone for his depth of learn-
ing, for his sweep of mind and for the promptness of his decisions.”
He was open to conviction to the last, and even, it is said, after the
hearing had concluded. Amiable in temperament, he encouraged junior
counsel to give their best to their case, and it is universally acknowledged
that no junior appearing in his Court ever felt nervous merely on the ground
that he was opposed by eminent senior counsel. But he possessed little
patience for the idle point or frivolous submission and, although controlled
by his deeply ingrained sense of courtesy, his indignation would pour out
in an ever quickening flow of observations meeting and demolishing the
argument of counsel. Proverbially, there have always been two kinds of
Judges, the silent Judge and the talking Judge. Sulaiman was not a silent
Judge. But then it has been observed that a quick and restless intelligence
under the pressure of a powerful mind often finds it difficult to restrain itself.
It is unable always to obey that constraint which at times accompanies, and
sometimes disguises, a less energetic temperament.
In 1929 he was knighted by the King-Emperor. He acted as Chief
Justice in the absence of Sir Grimwood Mears, and thereafter served as a
member of the Peshawar Enquiry Committee constituted for enquiring into
the riots in Peshawar in 1930.
Upon the retirement of Sir Grimwood Mears as Chief Justice, Sir
Shah Sulaiman was appointed to that supreme office on March 16, 1932.
It was a momentous event and one of profound significance for the Province,
297
from tradition. He travelled widely into the civil law and soon commanded
an extensive civil practice. He was in demand not merely in the High
Court but also in districts far removed, and with the growing volume of
his work began to emerge as a leader at the Bar. He was clear-headed, and
quick to appreciate the demands of each case. In argument, he possessed
a clear, incisive style which unburdened by embellishment or flourish quietly
carried his point home.
His comprehensive grasp of the law and his brilliant and discriminating
intelligence attracted the attention of two successive Chief Justices, Sir Henry
Richards and Sir Grimwood Meats, and, at an age still comparatively young,
he was offered an officiating appointment on the Bench. He officiated as
Judge of this Court from April 15, 1920 to August n, 1920, and then followed
two brief periods in 1921 and 1922. He returned to the Bar and resumed
practice, but his return was short-lived. His judicial acumen and talent,
which had drawn favourable notice from all those who had appeared before
him during the periods of his officiating appointment, moved the Govern-
ment to offer him a permanent seat on the Court. On April 4, 1923, he
was elevated to the Bench as Puisne Judge, and the occasion is recorded by
the Allahabad Law Journal Reporter with this appreciation :
“Dr. Sulaiman’s career in the High Court has been one of uniform
brilliance and it must be a great sacrifice on his part to accept the
Judgeship of the High Court. In doing so, he has upheld the best
traditions of the Bar which require that a successful advocate is bound,
in point of moral obligation tc the State, to serve on the Bench when
called upon by His Majesty the King to do so. As an officiating
Judge, on two occasions, he made himself universally popular among
all sections of the Bar by his courtesy, patience, and evident desire to
do justice.”
The Judge now replaced the lawyer. Sulaiman brought to the judicial
scene a combination of qualities which very soon placed him among the great
■CiSh, 296 -^2=
Judges of the Court and, indeed, among the outstanding of the country.
As Sir Tej Bahadur Sapru was to observe later :
“Nature had endowed him with gifts of an extraordinary character.
Possessed of a penetrative intellect, a mind which could dissect and
analyse things as very few other minds could, a power of expression and
exposition, he did not fake much time on the Bench before he made
everyone feel that we had got a Judge of unusual ability and unusual
gifts ... He earned the respect of everyone for his depth of learn-
ing, for his sweep of mind and for the promptness of his decisions,”
He was open to conviction to the last, and even, it is said, after the
hearing had concluded. Amiable in temperament, he encouraged junior
counsel to give their best to their case, and it is universally acknowledged
that no junior appearing in his Court ever felt nervous merely on the ground
that he was opposed by eminent senior counsel. But he possessed little
patience for the idle point or frivolous submission and, although controlled
by his deeply ingrained sense of courtesy, his indignation would pour out
in an ever quickening flow of observations meeting and demolishing the
argument of counsel. Proverbially, there have always been two kinds of
Judges, the silent Judge and the talking Judge. Sulaiman was not a silent
Judge. But then it has been observed that a quick and restless intelligence
under the pressure of a powerful mind often finds it difficult to restrain itself.
It is unable always to obey that constraint which at times accompanies, and
sometimes disguises, a less energetic temperament.
In 1929 he was knighted by the King-Emperor. He acted as Chief
Justice in the absence of Sir Grimwood Mears, and thereafter served as a
member of the Peshawar Enquiry Committee constituted for enquiring into
the riots in Peshawar in 1930.
Upon the retirement of Sir Grimwood Mears as Chief Justice, Sir
Shah Sulaiman was appointed to that supreme office on March 1 6 , 1932.
It was a momentous event and one of profound significance for the province,
It was an event which aroused the pride of Indians and ranked close to the
powerful emotion which was already sweeping the country in the wake
of the movement for political independence. He was not the first Indian to
occupy the office of Chief Justice— Sir Shadi Lai had already preceded him
in that respect at Lahore— but his appointment evidenced the conviction
in the British mind that the Indian race could be confided with the helm
of judicial administration.
Shortly after assuming office as Chief Justice, he was appointed to
serve on the Capitation Rates Tribunal in England, presided over by Sir
Robert Garran of Australia, with Lords Dunedin and Tomlin and Sir
Shadi Lai, as his colleagues. Difficult problems of military finance arose
before the Tribunal, and Sir Shah Sulaiman aroused the respect of the Bar
in England for the facility with which he tackled them.
As Chief Justice of this Court, he enjoyed the confidence and co-opera-
tion of his colleagues in the fullest measure. With his inherent qualities
and the reputation which he had already acquired as a member of the Court
he was the natural leader of the team of judicial talent which adorned the
Bench.
A word may be said here of the dispatch with which he executed
the business of the day. One remarkable instance is afforded by the
hearing and decision of the appeal in what is popularly known as the Meerut
Conspiracy Case. 1 The trial of the case had taken as long as two years
before the Sessions Judge. The record contained voluminous evidence.
When the appeal in the High Court came on for hearing, it was generally
expected that even at a modest estimate a few weeks would be occupied.
But before Sir Shah Sulaiman and Mr. Justice Young, the hearing lasted
merely eight days, and immediately upon the conclusion of counsel’s sub-
missions, Sir Shah Sulaiman dictated judgment in open Court,
l < 1933 A.L.J.R. 799 .
298
it is difficult within the limitations of a pen portrait to trace in any
detail Sir Shah Sulaiman’s contributions to the development of the law in
this Court. But reference may be made to some later Full Bench decisions
in which he participated. With his capacious intellect and versatility, he
was at home with equal facility in every branch of the law. It could be
a matter arising out of the Companies Act, as in Shiam Lai J. Dewan versus
Official Liquidators of the U. P. Oil Mills Co. Limited (in liquidation ) l 2 3 4
where he held that a winding-up order does not give a fresh start to a liquida-
tor, contributory or creditor for the purposes of limitation and that the period
of limitation would depend upon the relief sought as if the proceeding were
a suit seeking that relief on behalf of the company, or complicated questions
of the Hindu law, as in Chhotey Lai versus Ganpat Ra i 1 where he discussed
at considerable length the entire law relating to the pious obligation of a
Hindu son to discharge his deceased father's debts, in Ram Lai versus Chiranji
Lai 3 where he expressed the opinion that the circumstance that money
was borrowed by the manager for the purposes of a new business was not
sufficient reason for the alienation of joint family property, and that justifi-
cation for such alienation could be found only if the business was the mainstay
of the family and that there was pressure of necessity for continuing it, and in
Rajpali Kunwar versus Sarju Rai 4 which required consideration of the
Hindu Law of Succession as modified by the Hindu Law of Inheritance
(Amendment) Act, 1929. In Genda Lai versus Hazari Lalj he detailed
the principles relating to the application of the principle of res judicata to
execution proceedings and thereby removed much controversy that had existed
in the Court. The law of transfer of property was the subject of a number
1 1933 A.L.J.R. 1203.
2 1934 A.L.J.R. 483.
3 1935 A.L.J.R. 177.
4 1936 A.L.J.R. 659.
6 1935 A.L.J.R. 1189.
299
of important decisions in which he participated, one of them being Alam
Ali versus Beni Char an , 1 where the rights of a third mortgagee upon a
suit for sale by the second mortgagee were pronounced upon. The law in
India relating to receivers was considered in R. am Swamp versus Anandi Lai ,
where the question was whether under the provisions of the Code of Civil
Procedure, it was competent for the Court to appoint a receiver of the property
mortgaged pending the decision of an appeal against a mortgage decree,
and Sir Shah Sulaiman reviewed the case-law which had issued from the
different High Courts in India and compared the law in India with that
followed in England, Ireland and America. What should be the fair ratio
of distribution of compensation awarded for agricultural land, acquired by
the Government under the Land Acquisition Act, as between the landlord
and the occupancy tenants was considered by him in Shiam Lai versus Col-
lector of Agra"“ The question was a difficult one and called for a careful
weighing of the respective rights of the landlord and the occupancy tenants
almost to the point of mathematical precision, and the entire bundle of rights
of each claimant was subjected to the minutest analysis. The law relating
to pre-emption in the United Provinces owes a fair measure of its develop-
ment to the several decisions rendered by him. Criminal law received at
his hands the same intensive research which he devoted to the civil law. His
mastery over its principles was undoubted.
With a reputation whose brilliance was acknowledged throughout
the land, it was no surprise when in May, 1937, it was announced that
Sir Shah Sulaiman had been appointed a Judge of the Federal Court of
India. The new Court was constituted under the Government of India Act,
1935 an< ^ for the first time under British rule a focal point was created within
1 1935 A.L.J.R. 1294.
s 1936 A.L.J.R. 605.
3OO cgge.
the country to which important and grave questions of law proceeded from
the High Courts and which, moreover, was vested with original jurisdic-
tion in matters of constitutional importance in disputes between the Central
Government and a Province or between one Province and another. When
the news of his appointment was announced, there was great rejoicing in this
Court, and in a reference before a Full Court shortly after the announcement
tributes were paid and congratulations showered upon him. When the time
approached for him to leave for Delhi, there was a fond but sad farewell.
Sir Shah Sulaiman assumed office as Judge of the Federal Court on October
i, 1937-
Almost from the very beginning of the history of the Federal Court,
and indeed in the very first case, IH re C. P. Motor Spirit Act , 1 his
ability as a jurist came clearly to the fore. It was a reference made by the
Governor-General to the Federal Court for opinion in a dispute between the
Government of India and the Government of the Central Provinces and
Berar respecting the competence of the Provincial Legislature to impose retail
sales tax on motor spirit and lubricants. Characteristic of his keen enquiring
mind, Sir Shah Sulaiman sought out the distinction between customs and
excise duties on the one hand and retail sales tax on the other. He rested
the distinction between direct and indirect taxation on concepts ordinarily
familiar only to the economist and the student of public finance and appro-
priately set it in the historical context to which it belonged. The opinion
which he delivered has been described by that eminent British lawyer, J. H.
Morgan, K. C. in the following terms :
“Now I have just been reading the judgments of the Federal Court
at Delhi in that important case. One of those judgments stands out
conspicuous and pre-eminent and may well prove to be locus classicus
of the law on the subject. It is a judgment worthy of the highest
1 A.I.R. 1939 F.C. 1.
301
traditions of the House of Lords as an Appellate Tribunal and of the
Privy Council itself. I refer to the brilliant judgment of Mr. Justice
Sulaiman. In depth of thought, in breadth of view, in its powers
alike of analysis and of synthesis, in grace of style and felicity of expres-
sion it is one of the most masterly judgments that I have ever had the
good fortune to read. Everyone in India interested in future develop-
ment of the Constitution should study it.”
In United Provinces versus Governor-General-in-CounciV Sir Shah
Sulaiman resolved the doubt whether the scope of the administration of
justice extended to cantonments even as it did to other areas, and repelled
the contention that the cantonments were outside the jurisdiction of the
Provinces in the matter of legislation regarding courts of criminal jurisdiction.
A decision of wide importance was rendered in The United Provinces versus
Atiqa Begum , 1 2 3 where the Federal Court was called upon to examine
whether the Legislatures in India were entitled to enact legislation having
retrospective effect. Sir Shah Sulaiman expressed the opinion that they
did. Upon another interesting question raised in the case, he recognised
the right of the Government to prefer an appeal even though no decree had
been made against it, provided it had been impleaded as a party to the
proceeding before the High Court and was interested in the constitutional ques-
tion arising in the case. The doctrine of the “unoccupied field” in its applica-
tion to the Legislative Lists in the Government of India Act, 1935, was
considered by him and the principles flowing from that doctrine were
laid down in Subrahmanyan Chettiar versus Muttuswami Goundan? His
judgments bear the stamp of his genius and scholarship and have earned hirn
a place among such immortals as Sir Barnes Peacock, Sir Muthusami Iyer,
1 A.I.R. 1939 F.C. 1.
2 1940 F.C.R. no.
3 1940 F.C.R. 188.
Sir Bhasyam Iyengar, Mr. Justice Mahmud, Sir Pramoda Charan Banerji,
Mr. Justice Dwarka Nath Mitter and Mr. Justice Ranade.
It is not easy for a busy practising lawyer to find time for activities
unconnected with the profession of law. Those who have succeeded in
making effective contribution in other fields did so either when they were
practically briefless, as did Buckley who wrote his treatise on the Company
Law when he had only recently been inducted into the profession, or had
reached that prime of their professional career when the flow of work was
assured and the years of struggle and uncertainty behind. Sir Shah Sulaiman,
despite his heavy involvement with the legal profession, continued to
indulge in his passion for mathematics and physical research in astronomy.
It was a passion which, after the law, commanded his undeviating allegiance.
With his elevation to the Bench, he gave himself to it with increased devotion.
Always a scientist by temperament, it was his delight to retire in the evening
to that part of his residence where, surrounded by scientific tomes and
mechanical weights and other devices, he applied himself to the discovery
of the laws of the universe. Those laws were still imperfectly understood.
Over a long period the Law of Gravitation propounded by Newton had
wielded undisputed sway, and the student of science employed it in his
attempt to explain the motions of the solar planets and their satellites. The
theory was, however, demonstrated to be inexact and its soundness was
disputed by Einstein, who propounded his Theory of Relativity. Einstein’s
theory attempted to relate space and time in a union described as
the “space-time continuum”. The theory created a revolution among the
savants of science. Sir Shah Sulaiman, however, could not bring himself
to accept Einstein’s theory in all its implications. He developed a distinct
theory, which assumed that radiation flowed from the surface of bodies in
a motion which was the resultant of the forward velocity of light and the
rotational velocity of the electron. This theory, while departing from
Newton’s Law of Gravitation, sought also to explain the divergences noticed
303 - 4 ^
upon the application of Einstein’s theory. It won considerable distinction
in India and abroad and eminent scientists, who included Dr. Harlow
Shapley of Harvard, a powerful figure in the world of applied mathematics,
spoke in terms of the highest appreciation of its mathematical results. The
path of scientific research is long and difficult, often attended by frustration
and apparent failure. But the driving force of Sir Shah Sulaiman’s intel-
lectual vigour drove all obstructions from his path. And how formidable
were the obstructions in those now distant days of colonial rule is not easy
to realise in an age-grown accustomed to the availability of vast funds and
facilities in a country anxious to catch up with the scientific achievements
of the outside world.
A man of law and a man of science, he was fascinated by the moods
and rhythms of life. And Sir Shah Sulaiman discovered them in literature.
His refined and cultured mind was attracted to Persian and Urdu poetry,
and he frequently presided over literary gatherings where such compositions
were recited. It was not the fascination of the mere dilettante. His interest
reflected the philosophical urge of a man in love with human values.
His other love, Education, influenced him from his earliest years in
extending his assistance to several educational institutions. He was a
member of the Court of the Aligarh University and of the Allahabad Uni-
versity for several years. He participated in the deliberations of the Execu-
tive Council of the Allahabad University. In 1928, he presided over the
All-India Mahommedan Educational Conference at Ajmer, and later over
the All-India Adult Educational Conference at Delhi. The Aligarh Uni-
versity especially is heavily indebted to him. For it was there that as
Vice-Chancellor he effected a reorganisation of its academic and adminis-
trative life which put new vigour into its working. His advice was frequently
sought, and freely given, in matters relating to finance and scientific research.
Almost to the end of his life he continued to visit the University regularly
during the week-end.
304
Sir Shah Sulaiman commanded attention wherever he was. Endowed
with a distinguished presence, nobility was writ on his brow and good
breeding in every gesture; his thoughtful mien and calm, unruffled tempera-
ment emphasised a natural dignity. A thinker and a scholar, with a mind
sensitive and scintillating, he moved through life wearing distinction with
unassumed ease.
He had many years yet of the normal spanof life beforehim. But Destiny,
who had from his birth chosen him for her own, decided otherwise. On
March 12, 1941, at the zenith of his career and in the full possession of his
powers, he was stricken with a cerebral haemorrhage and within a few hours
he passed away. The numerous family of his friends and admirers mourned
the departure of a great man. His death was a profound loss, and not only
to those who knew him. The unfulfilled years of scholarship in law and
research in science were bereaved. To this Court the intelligence of his
death came as a severe blow. Here, he had spent the longest and most eventful
years of his life and now, apart from the legal wisdom enshrined in his
judgments, there was only the memory of the effulgent brilliance of his presence.
As one passes through the Marble Hall, outside the door of the Chief
Justice’s Court Room the eye falls on a simple marble tablet set in the wall
and inscribed with the legend :
IN AFFECTIONATE MEMORY
OF
SIR SHAH MOHAMMAD SULAIMAN, kt.
M.A., LL.D., BARRISTER-AT-LAW
PUISNE JUDGE 1923
CHIEF JUSTICE 1932
JUDGE OF THE FEDERAL COURT 193-7
DIED MARCH 12, 1941
THE JUDGES AND MEMBERS OF THE BAR
OF THIS HIGH COURT
HAVE PLACED THIS TABLET.
He has passed into history, and the glory that was the man now belongs
to the ages.
Some English Judges whom I Admired
By
SRI S. P. SINHA
Senior Advocate, Supreme Court and Ex- Judge, High Court , Allahabad
ggEijHE struggle for freedom, miscalled the Mutiny of 1857, failed for lack
MM 5 of unity of purpose and unity of command, for the utter lack of patriotism
displayed by the Indian princes and the whole of the Punjab. Lord Canning
described the States as breakwaters. How shall we describe the Punjab?
But, it was enough to shake the Empire to its very foundations. The Crown
realised its responsibility and assumed direct control of the administration.
England felt that the memories of Havlock, Hudson, Neill, Nicholson and
so many others should be obliterated. They had, by their misdeeds, shamed
even Nero and Caligula. She also felt that the policy of the mailed fist
initiated by Warren Hastings and pursued by Wellesley, Moira and Dalhousie,
*2^ 307 ^
the author of the infamous doctrine of lapse, should be replaced by a policy
of the Velvet glove.
“Old Order Changeth Yielding Place to New.”
Canning himself was the first in the new order. Barring one or two
exceptions, like Lytton and Curzon, the line was unbroken. England
was anxio us that the best products of Oxford and Cambridge should be
sent to this country ; men to whom :
“India was not merely a land of regrets and rupees, but a land of
duty written in five letters instead of in four.”
SIR ROBERT AIRMAN
Robert Smith Aikman was one such product. He arrived in India
on October 22, 1867 and was posted to Agra as Assistant Magistrate and
Collector. Promotions those days were slow and followed a strict test of
experience and merit. It was only on March 20, 1886, that this young man
of unusual merit was first appointed as District and Sessions Judge, Aligarh,
which was then a great educational centre. The M. A. O. College, Aligarh
was presided over by Principal Beck, a young man of about thirty-two,
endowed with talents of the highest order. It is also remarkable that the
constitution of the college had been drafted by a young barrister of twenty-
two, Syed Mahmood, later the famous Justice Mahmood.
He served as a District and Sessions Judge for fourteen years, at
several places, but all in the Agra Division, till he officiated for Mr. Justice
Mahmood in November, 1892. On the permanent appointment of Sir
P. C. Banerji, he had to revert as District and Sessions Judge, Bareilly,
but after a few weeks, he joined the High Court permanently in place of
Mr. Justice Tyrrell.
308
In the High Court he was an outstanding success. That eminent
criminal lawyer, with an equal command of law and letters, the author of
India under the British Crown, has described Justice Aikman in these
terms :
“The patience that he displayed on the Bench was remarkable and
he had the rare faculty of cutting short long winded arguments by seme
short observations whose quiet humour was appreciated”.
He was equally at home both on the Criminal and the Civil sides.
Mr. Manmohan Ghosh, the eminent Calcutta Barrister, appeared before
him in the well-known case of Hanumant Prasad of Azamgarh. He formed
a very high opinion of him and said that it was a pleasure to appear before
such “an intelligent, painstaking and courteous Judge”. His judgment in
Queen Empress versus Mannu, I. L. R. 19 All. 390 (F. B.), in which he
slightly differed, in a very material particular, from Sir John Edge, is a
measure of his understanding and sympathy. He says at p. 417 :
“It requires no argument to show that if a witness who is giving
evidence against an accused person is proved to have made statements
differing materially from the evidence he gives in Court, the value of
the testimony is seriously impaired, for it is clear that either he or his
memory is not to be trusted.” The italics are mine.
The number of cases decided by him must be legion, but I propose
to notice one case, which in one form or another has, over the years, been
noticed by all the Courts in India, viz. Balkishan Das versus Legge (I.L.R.
19 All. 434).
The question still arises whether a certain transaction is a mortgage
by conditional sale, or a sale with a clause for repurchase. The parties were
represented by all that was best at Allahabad and Lucknow. Mr. Ccnlan,
Mr. Colvin, Mr. D. N. Banerji and Mr. Madho Prasad appeared for the
309
appellants; Mr. De Gruyther, Mr. Chamiar and Mr. G. P. Boys for the
respondents. At the end of the argument, which lasted for several days
before Mr. Justice Banerji and Mr. Justice Aikman, the leader of the
Lucknow Bar paid a high compliment to the members of the Bench. The
Privy Council affirmed the decision— 27 LA. 58. Mr. De Gruyther himself
won fresh laurels in the Privy Council.
Mr. Justice Aikman was singularly free from racial prejudice. The
case of Emperor versus Hoffman bears ample testimony to it. Hoffman, a
European was charged with wrongful confinement of a Marwari lady at
the Kanpur Railway Station. The Jury returned a verdict of not guilty.
His Lordship refused to accept the verdict and openly said he dissented
from it.
It is not surprising that the Bar, on his retirement in 1909, gave him
a farewell which, for its warmth and sincerity, has hardly been equalled,
never surpassed. Mr. C. C. Dillon and Mr. J. N. Chaudhri paid him rich
tributes. The compliment paid by Mr. Chaudhri himself a great master
of English language, was so unique that a few words will bear repetition :
“It is our duty to express our sense not only of your conspicuous
ability, learning, patience and assiduity . . . There never was a
Judge who was more deeply imbued with a more earnest desire to do
justice between man and man and who better succeeded in inspiring
confidence in the public mind”.
The Bar presented him a silver casket on which were inscribed the
following Urdu lines composed by the famous poet Akbar, who had once
served under Justice Aikman as a Small Cause Court Judge.
Thy justice , Aikman has won' — Many a heart, not one ” .
310
Presiding, in the unavoidable absence, owing to sudden illness of the
Viceroy, Lord Lansdowne, over the memorial meeting to mourn the death
of Theodore Beck, Sir Arthur Strachey referred to the deceased in these
terms :
“He was one of the few Englishmen whom England sent to the
country as messengers of goodwill, to interpret the high and noble pur-
pose of the empire”.
I used to hear many anecdotes about him from my father and his friends.
I shall mention only one, because it represents the highest water-mark of an
unruffled temper and almost divine patience and dignity.
There was a barrister who did not exercise much discretion or judgment
in the selection of appeals he filed. He stood up to argue a second appeal
and, for want of any point worth arguing, he argued :
“My Lord, the judgment of the Court is unintelligible”.
Justice Aikman : “No, the judgment is quite intelligent to me”.
Counsel : “Your Lordship must be an extraordinary man”.
Judge : “No , I am a very ordinary man”.
Counsel: “No my Lord, you must be a very extraordinary man”.
After that, the Judge kept quiet and the arguments continued uninter-
rupted.
I know of no parallel to such nobility of character. Sir Robert
Aikman belonged to the class of I. C. S. officers, who lived for the people,
moved amongst the people and had their being with the people of this country.
He has left a memory which is still treasured by us. It is of such man
that the poet has said :
“A gentleman I’ll be sworn thou art,
Thy form, thy face, actions, tongue and spirit
Do give thee five-fold blazon”.
0*^. 3 II
SIR JOHN STANLEY
Sir John Stanley came to India as a Puisne Judge of the Calcutta
High Court in 1898 ; and on the death of Sir Arthur Strachey he was
appointed Chief Justice of the Allahabad High Court. He assumed charge
on August 17, 1901. The Calcutta Weekly Notes, then at its zenith,
wrote of him in very complimentary terms and he brought to this Court a
high reputation for ability and industry.
Stanleys are well-known names in England. Members of his family
held high offices under the Crown, at home and in different parts of the
Empire. Sir John Stanley throughout his career as Chief Justice maintained
the high traditions of his family.
His judgments show a thorough grasp of legal principles, wide exper-
ience, the saving grace of common-sense and a comprehensive view of human
life. He was the master of a style simple, elegant and with an easy flow of
words.
Almost throughout his tenure. His Lordship sat on the Civil side, in
heavy first appeals. He spared neither himself nor others ; and quite naturally
he made a substantial contribution to the case-law on a variety of subjects.
I shall notice one or two of his decisions which have left a permanent impress
upon the case-law.
The terms— ‘A Hindu son’, ‘vested right in the family property’ and ‘the
Hindu coparcenary’— sounded as anachronism to some of us even then. But,
the Hindu son found in His Lordship a genuine friend and a warm advocate.
Sir John Stanley’s intelligence and shrewd common-sense enabled him
to get at the truth. In a case, which was a locus classicus, Maharaj Singh
versus Raja Balwant Singh (1906 A. L. J. R. 274), he delivered a remark-
able judgment. The suit was brought by the transferee of a mortgagee.
The mortgage in suit was executed in lieu of earlier debts incurred by the
father. His Lordship’s judgment on the question of burden of proof is truly
remarkable. Says he —
*'(a) No necessity for the expenditure of the moneys, which
the income of the estate could not satisfy, is suggested, other than
that, which might arise out of a dissolute and extravagant mode
of life.
(b) Now that a large part of the money borrowed by Raja Shankar
Singh, was borrowed for immoral purposes, there can be no doubt.
His income was more than ample to meet his ordinary requirements,
and in addition to that, he had the large accumulations amassed by his
father.
(c) Experience tells us that his licentious mode of life was not and
could not be concealed from his neighbours. It was no doubt the common
talk of the bazar. No intending lender could fail to have learnt of it,
if he had made any enquiry whatever.
(d) The facility with which Hindu fathers can obtain loans from
money-lenders has proved disastrous to many respectable and well-
to-do families in these provinces”.
This reads like a page from some old text-book writer who had entered
into the spirit of the Hindu law. It is not surprising that His Lordship, as
the scion of a distinguished family, held this view. It reminds me of a few
lines in one of Shakespear’s plays :
“My Lori of Norfolk ! Since you are truly noble
As you respect the estate of the Despised nobility/’
His Lordship had a high sense of morality and we would not grant
the husband a decree for restitution of conjugal rights if he had made a
wanton and unfounded attack on the character of the wife.
To quote His Lordships :
“We find him in the plaint itself heaping the vilest insults upon her.
He charges her with immorality and adultery. In view of her
parentage, position and fortune the charge, if untrue, is sheer cruelty*’.
(1907) 4A.L.J. R. 60, at p. 65.
Like Sir Robert Aikman, Sir John Stanley was also singularly free
from racial prejudice. A case from Jhansi was typical of its kind and illus-
tratesHis Lordship’s exalted character. One Rahim Baksh, a building con-
tractor, did some work for the Government and had not been paid his dues
despite repeated demands. One day, with more zeal than discretion, he
approached the Engineer, Mr. Bice, and pressed his demand. This was too
much for Mr. Rice. He not only scolded the contractor, but freely used
his cane. Rahim Baksh brought an action for damages on account of the
beating. Among the pleas raised by the Engineer in his defence was that
what was done had been done in the discharge of his duty. The suit was
dismissed by the Courts below. The second appeal came up for hearing
before Sir John Stanley. His Lordship summoned Mr. Rice and plainly
told him “It was no part of your duty to use your cane and beat the man”.
He acted as Chief Justice for ten years and, very naturally, men’s memories
were full of his acts of kindness. Sir John Stanley retired in 1911, but he
was long remembered for his many acts of kindness. We owe the present
building of the High Court mainly to his efforts. He died not long after.
"But to live in hearts you leave behind, Is not to die”.
SIR THEODORE PIGGOTT
Mr. Justice Piggott came to India in 1888. He was born at Padua,
m Italy, on October 26, 18 67 and was educated, first at Kingswocd School,
314
Bath, and then at Christ Church, Oxford, from where he took his degree
with distinction in 1888. He joined the service on August 28, 1888,
as Assistant Commissioner, Allahabad. From here he went to Jhansi
in the same capacity. In April, 1890, he was made an Assistant Magis-
trate and Collector and worked in that capacity in Mirzapur, Ghazipur,
Ballia, Bulandshahr and Budaun. He was there made a Joint Magistrate
in November, 1893. After six years of service on the executive side, he went
to Aligarh as Additional Judge. The M. A. O. College, Aligarh, at
that time, in the words of Sir Tej Bahadur Sapru, “was particularly lucky
in the brilliant combination of its professors. Theodore Beck was the
Principal of the College and there were men like Sir Theodore Morrison,
Professor Wallace, Theodore Arnold and the distinguished Shakesperean,
Professor Raleigh”. Among the students was that prince of scholars, Satish
Chandra Banerji, who had few equals in the country, none to surpass him.
The subject of this sketch was a man of a scholarly disposition. I have
no doubt the advent of the fourth Theodore must have enriched the intel-
lectual life of Aligarh. After that, Mr. Justice Piggott, barring a short interval,
always worked on the judicial side at Budaun, Saharanpur, Moradabad and
Gonda.
He had made his mark as one of the best Judges in the Province and
was appointed officiating Judicial Commissioner, Lucknow, in 1908.
He was confirmed in 1909. He officiated in the High Court in 1910, 1911
and 1912. He came here permanently in place of Sir Harry Griffin in
June, 1914 and retired in April, 1925.
Once I went to the house of Sir Theodore Piggott. As soon as I
reached there, I was ushered to the drawing room where he was sitting with
a few Indian raise s. He was talking to them in very good and fluent Urdu.
He very warmly shook hands with me. One of the persons present put to
His Lordship, what was a matter of common knowledge, if it was a fact
that he had superseded seme men in his service. He was modest almost
to a fault and very nearly blushed when he said “I do not know why, but the
Government was somehow partial to me”.
His Lordship was the master of an inimitable style, which was both
scholarly and homely. It had, sometimes, a romantic touch. Of these,
the best illustration is the case of Budha Singh versus Laltu Singh (I. L. R.
34 Allahabad 663), when, sitting with Sir P. C. Banerji, he had to decide
one of the subtlest and most difficult questions under the Hindu law. Who
under the Banaras School of Hindu Law, had a preferential claim’— the
great grandson of the grand-father, or the grandson of the great grand- father ’
The answer depended upon the interpretation of the words Putra and
Santana in the Mitakshara. It was a most perplexing problem. Emi-
nent authors, ancient and modern, were arrayed against each other.
Visheshwar Bhatt, the author of Subodbini and Madan Parijat among
ancient commentators, and Mandlik and Golap Chandra Sarkar among
modern writers, on the one side, and Aparaka and Manda Pandit among the
ancients and Harington, Jolly, Mayne and Sarbadhikari among the modern,
on the other. The weight of authority was evenly balanced and the Judge’s
task was most difficult. In this, the grand-father’s great grandson won.
It will serve no useful purpose to notice any further Mr. Justice Piggott’s
contribution to the case-law. I would like to say only this that in criminal
cases he took a very liberal view. In one case Surendra Nath Mukherji
versus Emperor (1918 A. L. J. R. 478), he went up to almost unattainable
heights and gave a judgment which, for its breadth of view and literary
elegance, has seldom been excelled.
He had married the daughter of Mr. Walter Lyall, the elder brother
of Sir James Lyall, for sometime Lieutenant-Governor of Punjab, and
also Sir Alfred Lyall, the scholar administrator whose book on Warren
Hastings is so well-known.
Mr. Justice Piggott never said an unkind word from the Bench. He
not only knew his English law very well but was equally well-versed in the
Indian law. It was a pleasure to hear his observations when a Senior
Counsel argued an important question of law. There was nothing he did
not know.
He was a great Judge, what is more, a kindly gentleman whom some
of us still remember.
317
Sir Pramoda Charan Banerjee
By
SRI AMITAV BANERJI
Advocate > High Court , Allahabad
jjjE sat on the Bench of this Court for nearly thirty years and left a mark
which has been an inspiration not only to those who followed him but
to the entire judicial world. He was truly one of the great Judges that have
adorned the Bench of any High Court in India. No other Indian Judge
sat for a longer period on the Bench and he made a very solid contribution
to the elucidation of our laws, particularly the law on Mortgages and the
Hindu Law. Not only the Judges of his generation and their successors in
this Court honoured his opinions but also the Judges of other Courts looked
upon his judgments with the utmost respect.
Sir Pramoda Charan was born on the ioth of April, 1848. He was
educated at the Presidency College at Calcutta and took the B. A. Degree
with distinction. He obtained the ‘Ryan Scholarship’ and passed the
Bachelor of Laws Examination of the Calcutta University in 1869.
He was enrolled as a Vakil of the Calcutta High Court in the same year
but shifted to Allahabad and commenced his practice in the High Court
in November, 1870. His contemporaries at the Bar were Munshi Hanuman
Prasad, Babu Pearey Mohan Banerji, Pandit Ajudhiyanath and Mr. Charles
Dillon. Two years later he was offered an appointment as a Munsif of the
2nd Grade which he accepted much to the regret of his colleagues at the
Bar. While still a Munsif he was appointed Deputy Registrar of the High
Court. His tenure of office as an officer of this Court proved an extremely
successful one. Eight years later in 1880 he superseded 19 senior Munsifs
and was appointed a Judge of the Small Causes Court at Agra which post
till then had been held by Europeans only. He was the first Indian Member
of the Provincial Judicial Service to be appointed to responsible office. In
1886, he was transferred to Allahabad and for seven years was the Judge,
Small Causes Court, Allahabad.
In 1893 he was appointed an additional Judge of the Chief Court
of Oudh at Lucknow. Four months later, he was elevated to the Bench of
the High Court at Allahabad on the 20th of December, 1893. He retired
on the 1st of August, 1923, and during this memorable career he worked
devotedly on the Bench and exhibited unruffled patience, unvarying courtesy
and an unfailing desire to do justice. His reputation as a Judge of out-
standing ability, legal acumen and scholarship stands high and the pages
of the law reports enshrine his luminous expositions on many an intricate
point of law.
His memorable minority judgment in the Full Bench case of Bhagwan
Singh versus Bhagwansingh (reported in Indian Law Reports 17 Allahabad,
page 294) on the question of adoption bore a stamp of industry and research
into the intricacies of the Hindu Law. Although the above reported case
is more often cited as an example of the great mastery on questions of Hindu
Law by Chief Justice Sir John Edge, whose opinion was the leading majority
judgment in that Full Bench case, the Privy Council by its decision
(reported in Indian Law Reports 21 Allahabad 412), reversed the majority
opinion and upheld the view taken by Mr. Justice Banerji. He was rightly
recognised as an authority on Hindu Law throughout India.
320
On the law of Mortgage his opinions were read and followed by Courts
and Counsel alike throughout the country. His opinion in the reported
case ofBaikishan versus Legge, (I. L. R. 19 Allahabad 434) was an example
of lucid exposition of the law on Mortgage by conditional sale, commonly
known as “hai bil wafa” in this State. The Privy Council upheld the decision
on appeal. His pronouncements on the law of the Transfer of Property
were significant and were major contributions to the case-law on the subject.
Judges of the Privy Council respected his opinions and his judgments were
seldom overruled or set aside.
He was a prodigious and indefatigable worker. He studied each
record with great care. He would not hesitate to pierce the armour of any
counsel who dared advance an untenable argument or one not based on
record, yet, he was also so considerate, gentle and courteous that the in-
experienced and the junior member of the Bar was promptly set at ease in
his presence. Outside the Court there was hardly an occasion when he
would not offer a kind word of encouragement to a young lawyer.
He had a faculty of stripping away non-essentials and laying bare the
heart of a controversy. He exposed fallacies in arguments relentlessly but
with good humour. He had an abundance of patience, tolerance and under-
standing. Those were not common virtues but they were his in uncommon
measure. A man of exemplary character, he possessed great human under-
standing and an appreciation of our national heritage. He was full of
worldly wisdom, humility and a quiet natural dignity which inspired respect
and admiration.
His memory was phenomenal and amazing. He seldom took any
notes while listening to an argument and yet , he was able to reproduce almost
the exact words uttered by the Counsel. No point of law or any material
fact escaped his memory and were found in proper sequence in his judgments.
He remembered every decision of his, including all the complex facts therein
and those of the Privy Council and his knowledge of the case-law was
321
profound. In later years when his eyesight was very poor he did not
encounter any serious problem for whatever was read or spoken was duly
etched in his memory— which remained as sharp as ever.
His capacity for hard and sustained work, his thorough grasp of the
principles of law gave firmness to the expressions in his judgments.
A sound knowledge of the judicial and administrative procedure and the
laws of the State, acquired through the working from the lowest to the highest
office in the judiciary gave him an advantage which was possessed by very
few of his colleagues on the Bench and fewer still at the Bar. Wherever
he worked and in whatever capacity, he distinguished himself by his great
talents, ability, impartiality and fearless discharge of his duties.
A man of his learning and knowledge was not very common in those
days. His taste was confined not merely to the reading of legal literature.
He was a widely read man. His palatial house (now the Women's College
in the University) which housed a splendid library was the meeting place
of the intellect of the town. Sir Pramoda Charan was not merely a great
Judge but a reputed educationist as well. He devoted considerable time
to the cause of education. He was a member of the Faculty of Law of the
University of Allahabad and took the keenest interest in the progress and
the development of the University. He was also a distinguished Vice-
Chancellor of the University for several years. His efforts for the spread
of higher education amongst his countrymen was a notable contribution made
by him in the field of social service. The University of Allahabad honoured
itself by conferring on him the degree of Doctor of Laws, honoris causa , in
1919.
In private life Sir Pramoda Charan enjoyed the highest respect for
his sublime character and personal charm of manners. Those who knew
him personally remembered his modesty and his courtesy. He was chari-
table and kind, but correct in his approach to men and matters. No one
could ever forget a visit to his house-his hospitality and cordiality
<a ^ s > 322
were renowned. He was a man of taste and his collections were an object
of envy to the visitors. His son Lalit Mohan Banerji followed in the
brilliant footsteps of his distinguished father and was raised to the Bench
in 1926.
On his death at the age of 82, Sir Grimwood Mears, the then Chief
Justice, said of him : “At times, on one’s journey through life, one meets
men so abundantly dowered with qualities that lift them so much above
their fellow-men, that there seems to be almost an element of unfairness in
so lavish a concentration of gifts. Sir Pramoda Charan Banerjee was one
of those rare men. He had as a foundation abundant vitality, without
which so sustained an achievement as his, spread over, as one might say, two
life times, would have been impossible. He possessed a clear and power-
ful brain and being by temperament industrious, after years of hard work
became a profound lawyer. His higher gifts of character and kindliness
of disposition drew all of us to him”.
Sir Tej Bahadur Sapru spoke of him as “one of those who added dis-
tinctly to our status both as an Indian and as a lawyer and to our intellectual
and moral qualities. The legal profession could not have asked for a better
representative on the Bench and the Judicial Service might well take pride
that it could produce a man of his talent and of his calibre”.
Few men have been so well qualified by intellect, experience and
personality to meet the exacting responsibilities of a Judge of a High Court
in India. Although he rose from humble beginnings to the highest office
in the Judiciary, for any Indian then, he never lost his understanding of
people— that commonsense touch and good judgment so essential in one
who attains such heights.
Generations of students and professors, lawyers and Judges studied and
analysed his judgments and acknowledged his intellectual eminence. The
name, the fame and the reputation of this Court was built up by men of
the calibre of Sir Pramoda Charan who spared no pains to prove that
323
intellectually and morally his countrymen were fit to discharge any duty cast
on them with impartiality, with honesty and with ability. They were the
fore-runners of men who clamoured for complete independence from foreign
domination and as such they were rightly the leaders of the nation. In
those days when Sir Pramoda Charan lived and worked the society honoured
men of intellect and integrity and nothing was honoured more. It was the
country’s good fortune that brought a man of such character and integrity
into public life. The contributions of Sir Pramoda Charan were manifold
and significant for the well-being of his countrymen and he will be remembered
as long as the present judicial system and the Allahabad High Court exist.
Sir Bisheshwar Nath Srivastava
By
LATE SRI MAHESHWARI DAYAL
Retired District Judge
N the annals of the Chief Court of Oudh Sir Bisheshwar Nath stands
assured of a place not less distinguished than any of his contem-
poraries or those who came there in the succeeding generation. His career
is a story of ever accumulating success without its share of vicissitudes.
Sir Bisheshwar Nath was born in the year 1881 at Bilhaur
(in the district of Kanpur), in a very respectable family. His father, the
late Munshi Badri Nath, was a Deputy Collector, and in those days it was
an office of distinction, for that was the highest executive office an Indian
could normally aspire to.
Little is known of his early life, and, besides this, its account would
deserve inclusion only in an exhaustive biographical volume. It is sufficient to
mention that he was from the outset an intellectual prodigy. Though he
does not seem to have had a meteoric academic career, yet he performed the
wonderful and almost incredible feat of passing the Entrance Examination
325 =4i
at the age of 13 and taking the B. A. Degree at the age of 17. In the
19th century it was indeed an achievement of dazzling brilliance more
marvellous than topping the list of successful candidates of securing honours.
Before he was 22, he bid adieu to the University, after having sucked out of
it all that it had to yield, and set up as a lawyer in the year 1903.
His career at the Bar was from the beginning blessed with the smiles
of fortune. By 191 9, when he was dobbed an Advocate by the Oudh
Judicial Commissioner’s Court, which was the humbler and plainer form
of the Chief Court, he had already become a doyen of the Bar of that Court.
In that antediluvian age, Advocateship was the blue ribbon of the Indian
Bar and only leading lawyers of exceptional merit were favoured with that
distinction. Soon he rose to the pinnacle of success and fame. And why
should it not have been so? He had all the graces, virtues, and qualifi-
cations that are the warp and woof of a great and brilliant laywer— a fine and
imposing presence; very sweet, persuasive and winsome manners and address ;
facile, lucid and impressive expression ; cogent reasoning; intelligent and
masterful marshalling and exposition of facts; profound and extensive knowl-
edge of legal principles, and precedents; a robust common-sense; indefatig-
able energy and inordinate capacity for hard work; thorough dependability
and trustworthiness. He enjoyed the respect and esteem of both the Bench
and the Bar, as well as the litigant public.
It must be said to his credit that he did not stumble on success, but
earned it as a conquest by a determined use of intellectual gifts with which
nature had endowed him in no niggardly measure. He was a practitioner
mainly on the civil side, and had a special mastery of the Taluqdari law.
There was hardly an important case in the Province of Oudh in which
his professional services were not requisitioned. He had an extremely busy
time and money came to him in abundance.
His career took its first somersault in 1928, when he was temporarily
elevated to the Chief Court Bench. It did not come as a surprise ; for
326
he had become the undisputed master of the field and the foremost leader
of the Bar. He gave a most creditable account of himself ; and it was
discovered that he was not only a great Advocate but a great Judge too. A
great Advocate is not always a great Judge or vice versa, and combina-
tion of the two is a rare phenomenon. This small beginning consummated
the following year, when he was made a permanent puisne Judge. He
quitted the profession amidst mingled joy and regret of the Bar and his clientele.
It must have been a moment of tense excitement and anxiety for him ; for,
though the exalted position promised him abundance of glory and honour,
he had to pay a heavy price for it. He was, not however, slow in making
his choice. He preferred to be a dispenser of justice.
His elevation was acclaimed universally as a valuable acquisition
to the Chief Court Bench. People confidently looked forward to a dis-
tinguished judicial career culminating in the top-most rung of the ladder.
As time rolled on, the expectation matured into certainty. But, when, on
Sir Syed Wazir Hasan’s retirement in 1934, the occasion for his permanent
appointment as Chief Judge approached, these hopes were, for certain reasons
which were not attributable to him, clouded over; and it was feared that an
Indian might not be appointed again to that high office in Oudh. And
this, in spite of the fact that Mr. Justice Bisheshwar Nath had established an
abiding reputation for rigid honesty, inflexible impartiality and punctilious
disregard for personal connections, amounting to self effacement — even outside
his sphere of office. He was, by the way, one of those who would not give the
benefit of their personal influence, in their private capacity and within
legitimate bounds even to their nearest relations and would leave them to
face the struggle of life just like other people with whom they have no concern.
He had an idealistic conception of the maxim fair field and no favour.
Whether by accident or design, the apprehensions came out true, and
Sir Carleton Moss King was imported from the Allahabad High Court
to fill the Chief’s gaddi. Strong rumours of threatened resignation by
327 tseg*
Mr. Justice Bisheshwar Nath were rife ; and some thought that that was the
only dignified course to be followed as a protest against what was supposed to
be a gratuitous affront. But he was too level-headed, to take a hasty step — he
had plenty of sang froid. He bore the blow with a good grace and struck
to the post. He was offered— so it was reliably understood — a seat on
the Allahabad High Court Bench (perhaps as an eyewash), but he declined
it, evidently because he did not like to part with his home and hearth and his
native soil.
When Sir Carleton Moss King proceeded on long leave in 1936, Mr.
Justice Bisheshwar Nath was appointed officiating Chief Judge. He
had been in the post for well-nigh a year, when Sir Carleton’s retirement
was announced. Yet people were sceptic about his confirmation. But
Providence is not so fickle and capricious as we suppose and she has intervals
of mental equilibrium. Repetition of the previous experience, was
spared, and Mr. Justice Bisheshwar Nath came into his own. His Majesty
was graciously pleased to appoint him permanent Chief Judge and to confer
Knighthood soon thereafter.
The news of his appointment was hailed with exuberant enthusiasm
and boundless complacency. As rightly observed by the Chief Judge
himself, nobody could be a better Judge of the merits of a judicial officer
than members' of the Bar ; and the accredited representatives of the Oudh Bar
announced publicly their verdict in the course of their felicitations. He
was eulogized as an independent and fearless Judge who had no favours
to distribute from the Bench in the administration of justice,” who had “a
marvellous grasp of legal principles and was uniformly courteous and
patient. He had, according to them, all the attributes of a great Judge.
It would be very unfair to the subject of this sketch to confine it to
his professional and judicial existence and omit his public services. He
had not been one of those successful lawyers, who keep revolving round
their own self and cannot extend the sphere of their existence beyond their
328 <4^
domestic circle. He served the profession, as Honorary Secretary of the Bar
Association and member of the Oudh Bar Council for a number of years
with devotion. He served his home city as Municipal Commissioner and
Honorary Chairman of the Municipal Board and Improvement Trust with
great credit. The Government recognised his services with the title of
O. B. E. The Lucknow Municipality presented him a gratulatory address
on his confirmation as Chief Judge — a rare honour, perhaps the first of its kind.
It showed how profoundly he was loved and respected by the citizens of
Lucknow.
He had been closely associated with the political life of the country,
having been one of the General Secretaries of the Reception Committee
of the Indian National Congress in 1916, and President of the Liberal Con-
ference in 1924. The cause of education also had not been neglected. He
was prominently associated with the Lucknow University from its embryonic
stage and had taken active and real interest in its affairs. He had been
for quite long President of the management of the Hindu Girls* High School
and Hindu Widows’ Home and a number of other important institutions.
Charitably disposed and benevolent, he was always ready with his muni-
ficence. Every deserving cause met with a warm and generous response
from him.
Now something more personal about him. He was possessed of
a spotless character — a harmonious blending of virtues without the tinge
of puritanism — and well-formed habits of moderation in everything. He
was very sober yet genial, social and companionable ; witty without being
sarcastic; dignified without being haughty ; simple yet decent and elegant ;
luxurious without being extravagant or pompous. He had very suave
manners. On the Bench he was gentle but firm too, and to juniors he was
particularly kind.
It was indeed remarkable that the gale from the west had not blown
him off his moorings. In spite of having lived all his life in one of the most
329
fashionable cities of this country and in the most infectious environments,
he did not yield to die seductions of Anglican fashions.. He was charactei-
■sticallv Indian in his ways and not a bit of an anglomamac. He had always
'continued to don AMa„ and cap though he was very trim and tidy and
was dressed, so to say, as a sartorial poem. It was great thing indeed, wh.ch
showed he had character. . , , ,
He was an all round minion of fortune, and nature had been boun-
teous to him right and left. Often riches and glory abide in a lonely and
gloomy home, but not so in the case of Sir Bisheshwar Nath He had
been blessed with a rich harvest of progeny. He was apparently m good
health and one could little imagine that he would be resigning life so pre-
maturely. He had gone to England for his treatment and was said to be
completely cured but he was not destined to reach his home alive. On his
way back he suddenly expired at Bombay. This doleful news plunged the
entire city of Lucknow into mourning; every heart was afflicted with grief
and for long he was lamented and missed in so many spheres of life of the
town.
Such, in brief, is the story of our illustrious compatriot, a life of early
start and early end. There have been Judges and lawyers who came and
went away with, perhaps, a more spectacular flourish than Bisheshwar Nath
but few have left that enduring memory which he did !
Justice Niamatullah
By
SRI S. K. DHAON
Advocate, High Court, Allahabad
■P H O ^ eave behind an undying fame within a short span of nine years in
a place to which he did not belong, is a phase which every one has to
reckon with in appraising Justice Niamatullah’s career on the Bench of this
Court. Being stranger to Allahabad, the people here were not without misgiv-
ings in their minds at the announcement of his appointment, but it did not take
him long to convert their misgivings into the pleasure of the unexpected and
strangely enough he soon became the cynosure of all eyes in the High Court.
Little could they visualise that the stranger had come to them with promises
of greater glory than the known ones, and for which he would never be for-
gotten. That he has redeemed the promise can scarcely be doubted.
Justice Niamatullah came from a respectable family in Oudh. He was
born in December, 1877 and was brought up in the orthodox traditions per-
mitting of no departures in their observance. After completing his first
rudiments in Urdu and Persian under a learned Maulvi, he was sent to Gov-
ernment High School, Bara Banki and then to Mayo College, Aligarh.
331
In 1901 he joined the legal profession, starling his career at Aligarh. After
about 3 years he shifted to Faizabad. At Faizabad he came to occupy the
top within a very short time. A lawyer of his merit was certainly not
expected to exhaust himself in the DisfrictBar ofFaizabad and in due course of
time he shifted to the Chief Court at Lucknow. His rise there though, not
meteoric, was not belated either, and he reached the top a little after a decade
of his joining the Chief Court. Though never an aspirant for a political
career, he was not averse to uniting his legal career with politics and from 1926
to 1928 he was a member of the U. P. Legislative Council and a distinguished
one. Many are wont to think that in politics an enduring career can be
built only upon one’s unconscientious fidelity tohis group, but Nimatullah’s
instance negatives the universality of this axiom. With a mind, disinterested
and dispassionate he was only concerned with the public wellbeing. To
trim his sails to the prevailing breeze of popular opinion was indeed disdainful
to him. His public instinct being as remarkable as his intellectual powers
he might have been the Moses of his electorate only if he had chosen to stay
permanently in politics.
Few leaders in the legal profession had wielded that chastening influence
on its life as Niamatullah. “To err is human and tc forgive divine” and
Niamatullah with all reverance for probity was ever willing to forgive those
who by helplessness were driven to break it. He had an abiding thought
for the briefless and the deserving. Devoted as he was to the study of law,
the shirkers and the lazy had no place in his chamber. He had the gab in him
not for the gallery, but for cutting the Gordion Knot in the case. He was
tenacious, but not obdurate, and was never obliged to pursue a point which he
knew to be wrong. Success to him came by divine right of merit and not by
accident or devices.
To a lawyer so successful as he, acceptance of a seat on the Bench was
not without some sacrifice. He had to bid adieu to a large income and
prospects of prominence in public life. But neither he nor others ever
332
regretted his choice for the Bench as it is mostly upon hisworkasajudge of this
court that Niamatullah’s fame rests. In brilliance perhaps Sri Shah
Mohammad Sulaiman was more, but in depth of learning and erudition both
were equally celebrated. Learning in a judge without patience is quite
like a ship without anchor ; it fosters opinionatedness when alone, and
becomes virtue only when linked with intellectual humility. Truth generally
emerges from co-ordination of contrary opinions ; judge can prepare his way
to a just judgment only when he is sufficiently faithful to the gravity of hear-
ing. In his own words “hasty, justice was the step-mother of misfortune—
“FESTINATIO JUSTITIAC EST NOVEKCA INFO&TUNII”-
and this belief he always carried in his dispensation of justice. The pro-
found learning indwelt in him to become still more profound by acceptance of
wisdom from others. The Bench consisting of Justice Niamatullah was most
welcome to the counsel. With equal earnestness he would join a counsel in
scanning a proposition of law. In his appreciation of facts his vision was
elastic and reached the very main springs of human conduct. An impatient
colleague was never agreeable to him on the Bench, but even the most
hasty was bound to be converted to his creed if he sat with him for sometime.
There was hardly any Full Bench which did not include him and in each of
them his exposition of law is undoubtedly the most illuminating. He was
neither demonstrative nor had he in him the propensity to demolish every-
thing coming from the counsel. In civil law even the most brilliant of his
contemporaries had to yield the palm to him. In criminal law too, he was
second to none. “ In his habit, the judge ought to be grave and decent ;
in the whole of his deportment humble, courteous, affable and meek ; the
whole of his conversation ought to be savoury, wise and edifying ” is what
Lord Dun said in his “friendly and familiar advices ” and in few, all these
attributes could be seen in so much completeness as in him. His magnanimity
was sublime and his indignation touched every situation.
Before joining the Bench he was associated with the Lucknow University
333
and as a judge of this Court he was a member of the faculty of law of the
Allahabad University. On the resignation of Sir Ross Masood from the
Vice-Chancellorship of the Muslim University, Aligarh, he was requested to
succeed him but he declined to accept it. In the sphere of legal writing,
Niamatullah has no contribution. It is indeed regrettable that with so
much of erudition in him, he should have no authorship to his credit.
After retirement in December, 1937 from the bench of this Court, his
name was proposed for the Judicial Committee of the Privy Council, but
little inclined as he was to be away from his home, he suggested a few other
names for the vacancy. This is what Sir Shadilal once said and we must
take it to be true. He resumed practice at Lucknow and his scores in the
second innings were as high as in the first. It seemed as if leadership was
awaiting him there and it reached him running the moment he joined the
Bar. He was also a member of the Judicial Committee of the former Kashmir
State and the Judiciary of former Kashmir owes him not a little. On
March 23, i960 after a brief illness he passed away as we all would do.
Few lives are so spotless as that of Justice Niamatullah and of him it
may be said as of Wellington “whatever record leaps to light he never shallbe
shamed”.
My Predecessor s-in-Off ice
%s
By
SRI K. L. MISRA
Advocate General , U. P.
I
S N my appointment as Advocate General, Dr. Narain Prasad Asthana
smilingly said to me, “You are my greatgrandchild”. I was the fourth
in the line of descent from him — Mohammad Wasim and Peary Lai
Banerji having been the second and the third Advocates General of U. P.
When, therefore, on the 13th of May, 1966, soon after his 93rd birthday,
his grandchildren and great grandchildren invited a few persons to a
party in his honour, I felt that I should join the hosts. And what a party
it was, full of joy and frolic and fun, the toy balloons of variegated colours,
glittering in the array of ninety-three candles and the children, brighter
than the candles, rejoicing and clustering around him to wish him many many
happy returns of the day ; and there was Dr. Asthana, his face shining
with the happiness of health, age and achievements.
Any person, after his ninety years, has to face inevitable enquiries
about the secret of his longevity. The usual answers are, “I do not drink,
I do not smoke, I eat sparingly, I keep regular hours”. Dr. Asthana has
never been able to give these answers, because they would not be true. At
335
a late dinner, he can be seen any day enjoying the food and the drink and
the after-dinner smoke with the zest of younger years. The secret of his
longevity is the calm and unruffled face, the equanimity that would not be
disturbed either by hilarious joy or by the depth of sorrow. What others have
attempted by moderation in physical things, Dr. Asthana has achieved by
moderation in thought and in emotion.
Old age has its compensations ; but how few are those who can say
while growing old, that the best is yet to be in “the last of life for which the
first was made.” When for a person who has led an aimless and desultory
life, the shadows lengthen out and the midnight hour appears to be approach-
ing, the sense of night, leaden and paralysing, deepens the sadness of what
might have been. He starts living entirely in the past, clinging to the elusive
memory of his contemporaries, slipping, one by one, info the void of eternity.
Dr. Asthana’s life has had its light and shade, joy and sorrow. Personal
triumphs and achievements have mingled with deep bereavements, but both
have furnished occasions for the serenity which comes only to those who
have lived without rancour and malice, and who, like Dr. Asthana,
have realised that life’s calamities are not necessarily a punishment and its
triumphs and attainments not necessarily a reward.
Dr. Asthana is the tenth President of the High Court Bar Association,
Pandit Ajudhia Nath, in 1875, having been the first President. He has been
the President for 18 years, the longest term of any President, except the 25
years of Sir Tej Bahadur Sapru, his immediate predecessor. Dr. Asthana
is today the grand old man of the Bar because he has not stood aloof as he has
grown older. The changing society and the advancing thoughts and points
of view have not left him alone and isolated. Attending the High Court
almost every day, even now, he shares the joys and sorrows of the members
of the Bar and is with them in their difficulties and their problems. He has
remained alive and active, without the faltering steps of age, taking delight
in the joy of life and joining hilarious laughter.
336
Dr. Asthana’s career, as a lawyer, began when the rule of the British
Crown over India was only 37 years’ old. A century had, however, elapsed
since the creation, in 1793, of the modern legal profession in India, by the
first Regulation of the Governor-General, authorising the appointment
of vakils. When he started practice at Agra in April, 1895, no present
Judge, in India, of the Supreme Court or the High Courts, had yet been
born. Dr. Asthana went, thereafter, from position to position, with the
effortless strides of a person to whom achievements come, not by tireless striv-
ing after schemes for obtaining post and power, but as a recognition of
merit that did not generate pride, and humility that was not affected by
attainments and status. Soon after he had joined the High Court Bar, in
April, 1915. he became a member , in 1916, of the U. P. Legislative Council.
He was elected to the Council of State in 1927, became the Vice-Chancellor
of the Agra University in 1929, LL. D., Honoris Causa, of that Univerisity
in 1932 and the first Advocate General of U. P., when the Congress
Party took office, in 1937. The post of the Advocate General had not yet
become a political post, its remuneration was non-votable, and Dr. Asthana
continued as Advocate General even after the Congress Ministry had re-
signed in 1942. The other distinctions that he achieved in the educational,
social and legal spheres, the membership of the Executive Council of the
Allahabad University, the Presidentship of the Kayastha Pathshala and
of the U. P. Lawyers’ Conference, were not epochs but merely stages of a
smooth and unruffled life.
Law furnishes only the skeleton of any system of judicial administration.
The muscles and the sinews, the coursing blood, that gives to an institution,
like the High Court, its strength, its resilence and even its glory are furnished
by its traditions. Each Judge and lawyer leaves behind him, in the wake
of his advancing footprints, an aura, invisible and intangible, that makes
up and enriches that tradition. It is only the memory of that tradition,
wafted along the corridors of time, that shapes individual and collective
337 *££**
action of a newer generation. It is very seldom that the old order is carried
into the new by the visible presence of a person, who has rubbed shoulders
with the builders and the makers of the old and is able to share the hopes
and aspirations of the new. Of those, who were practising in the High Court,
when Dr. Asthana joined it in 1915, only a few remain, the privileged
long lived ones, Dr. K. N. Katju, Sir Iqbal Ahmad, Sri S. K. Dar, Sri
Brij Narain Gurtu, Pandit Narmadeshwar Upadhyaya, Maulvi Mukhtar
Ahmad, and Sri Janki Prasada. The High Court, in 1915, was
a glittering array of jewels, some of them still uncut and in the
making. There was Sunder Lai, the walking encyclopaedia of laws;
Moti Lai Nehru, the matchless wizard, who, to the surprise and delight
of a Judge, could turn a legal proposition or an issue of fact inside out,
into an unexpected attractive picture; Satish Chandra Banerji, the philosopher
and man of letters, whose entry into thefields of law enriched its literature, its
learning and its practice ; Sir Tej Bahadur Sapru, the great constitutional lawyer,
whose nobility of character and deep grasp of international affairs, carried
aloft the name of India into lands across the seas ; Charles Ross Alston
who could, any day, convince any Judge that the defence case was a fact and
the prosecution story, a fiction, and who could drag his client out of the
gaping jaws of conviction, by an adroit cutting of the corners ; and B. E.
O’Conor, the profound analyst of facts. The cascade of brilliance of K. N.
Katju and Peary Lai Banerji were then still in the womb of the future, but
the promise must have even then been both visible and audible.
There were others, walking then in the corridors of the High Court
building, men of keen intellect and profound learning who chose to go to the
Bench. There was Shah Muhammad Sulaiman who ccmbined a profound
knowledge of law with the clarity and precision of thought of the
mathematician and who, later took up cudgels with Einstein on certain aspects
of the theory of Relativity; Iqbal Ahmad who could dispose of 124 cases
under Order 41, rule 11, C. P.C. in a single day and yet satisfy every counsel
338
that he had been fully heard and who went to the heart of a criminal case
while his brother Judge was still groping with the First Information Report ;
Surendra Nath Sen, the effulgence of whose literary phrases illumined the
dark corners of law and Uma Shanker Bajpai, suave and impeccable, whose
gentle smile and witty literary words helped a stumbling and groping counsel,
across the barriers of each obstacle in the case. There were other notable
contemporaries of Dr. Asthana : Gokul Prasad, Sital Prasad Ghosh, G. W.
Dillon, S. C. Choudhri and Satya Chandra Mukerji. The Bar of the High
Court, in 1915* had the good fortune of containing men, whom Providence
had chosen to mould the destinies of the nation — Pandit Madan Mohan
Malaviya, clad in a cream achkan with his soft tongue and sweet persuasive
voice, Jawaharlal Nehru, then fresh from Harrow and Cambridge, Puru»
shottam Das Tandon, the embodiment of scruples and conscience and
Ishwar Saran, the redoubtable champion of the Harijans.
The names of these, giants in their days, have passed into the history
of this Court and some of them into the history of this country. Their lofty
thoughts and the impress of their activities have been woven into the texture
that forms the valuable traditions of this Court. Dr. Asthana not only
carries the living memory of these men, but is an embodiment of that culture
and tradition created and enriched by them.
The decades, that have passed since Dr. Asthana began the practice
of law, have seen upheavals of the political, social and economic structure.
Men have come on the stage of life and have gone, institutions have crumbled
and been replaced, the world of 1966, has become unrecognisable to the
citizen of 1915, but the changing panorama of life has not affected Dr.
Asthana. The fundamentals of life do not change. Goodness is more rare
and more difficult to attain than greatness. An infinite capacity for taking
pains is said to produce a genius but a good man is God’s own creation.
Dr. Asthana has survived, like a pole star, and will continue for long long
years to come because he is essentially and truly a good man.
339 ^
II
Mohammad Wasim succeeded Dr. Asthana. The short period,
during which he was Advocate General, was an interlude rather than a term.
The atom bomb had finished the war in Asia. The marching columns
of the Russian armies and waves of American bomber squadrons were,
inevitably, closing on Germany. As the war clouds scattered over Europe,
the agitation in India, for a separate Muslim State, increased in volume and
intensity. Chaudhari Khaliquzzaman, brother-in-law of Mohammad Wasim,
had broken away from the Indian National Congress and led the Muslim
League, in its agitation for a partition of India, Mohammad Wasim was
essentially a man of law, devoted to his profession, but the lure of politics,
and his brother-in-law, led him into adopting the Muslim League ideology.
Mohammad Wasim had been called to the Bar and had joined Lincoln’s
Inn on the 27th January, 1908. He came to India and joined the Avadh
Bar at Lucknow and became one of its leaders. With a clear and
comprehensive grasp of the law of procedure and the Oudh Estates Act,
Wasim became the idol of every Taluqedar, who went to law Courts.
Gifted with the capacity of precise thinking and expression, he had his
answers ready to every question in a Court-room and had risen to a place
among the leaders, more than two decades before his appointment as Advo-
cate General by the Governor of Uttar Pradesh.
With the partition of India, Mohammad Wasim migrated to Pakistan
and became a Judge of the High Court at Dacca, and later the Advocate
General of Pakistan. He represented Pakistan as a member of its Delegation
to the United Nations Organization. Mohammad Wasim died in Pakis-
tan far away from the field of his life’s labours and the large circle of his
friends in Lucknow and Uttar Pradesh. His successor to the post of Advocate
General of Pakistan was another member of the Avadh Bar, Mr. Faiyaz
Ali.
340
The time during which Mohammad Wasim was the Advocate General
of Uttar Pradesh was too short for any deep or lasting impression being
created. He stood at the parting of the ways and deliberately selected the
road to Pakistan. His gentle and courteous manner and his neat presenta-
tion of cases would continue to be remembered by all those who had come
in contact with him.
Ill
When Mohammad Wasim relinquished the office of Advocate General,
a new and free India had been born. The dawn of freedom brought, in
its wake, the responsibilities of freedom which were bound to be more
onerous than those in the routine administration of a foreign Government.
Victory over a towering imperialist power, with the matchless and unprece-
dented weapon of a non-violent fight, had given delight and jubilation.
But the people had come on the stage, and the glare of the footlights had
brought into prominence their poverty and ignorance. The small tillers of
the soil, who provided food for society, were living under a subordination, more
pervading and intimate, and, sometimes, more harsh, than foreign domina-
tion. The subordination of man by man was inconsistent with the dignity
of a citizen of free India. Landlordism had to be abolished to restore that
dignity, even though its disappearance might not, immediately, solve any
economic problem. Human personality had to be freed, even if the loosening
of the bonds of the landlord over the tenant created new and unforeseen
difficulties.
Visible on the horizon were many of the complexities that would arise
in the process of transforming the economic and social structure of society.
The task of giving advice to Council of Ministers in the construction of that
new structure, and of the wheels of law on which a free democracy would
move on its onward march to peace and prosperity, though fascinating.
was likely to be beset with hurdles. A Constituent Assembly, of a sovereign
nation, was engaged in the task of framing a Constitution for a free people.
The dignity of the individual and his rights were bound to be recognised
and guaranteed by the Constitution. The law of the future would require
the language and content of liberty. The atmosphere was pregnant with
immense possibilities. Even though it might become a routine selection
later on, the choice of an Advocate General of the largest State in India,
adequate to that occasion, had to be of the very best person available.
There was nothing then to cloud the vision or impede a selection on
merits. The narrow grooves of personal power-politics, that reduce selection
into jobbery, had not yet been formed. The ideals, with which Mahatma
Gandhi’s saintly leadership had saturated the country, had not yet been blunted
by tireless stale repetitions in the speeches of the politician. Clean and
noble patriotism, that the national fight had aroused, had not yet been
reduced to meaningless shibboleths and slogans, for capturing power and
position. The choice was easy. Sir Tej Bahadur Sapru, even if he could
have been possibly persuaded to accept, was no longer in active practice.
Dr. Kailas Nath Katju had been in the vanguard of the battle for freedom
and was in a Cabinet post. Peary Lai Banerji, the acknowledged leader
of the Bar, was the obvious choice and was selected.
But Peary Lai Banerji’s appointment, as Advocate General of Uttar
Pradesh, was not based upon political considerations. By his upbringing
and conviction, he had been loyal to the British Crown. He was the second
son of Shri Dwarka Nath Banerji, a leading criminal lawyer in the High
Court, who had joined the rank of Barristers and who spent the High Court
vacations, like European Judges, outside India. Dwarka Nath Banerji
had become a British subject and his third son, born in England, was named
‘George’. He gave to Peary Lai Banerji, as inheritance, not only a love of
the English language, but deep respect for the British Crown. Though Peary
Lai Banerji’s loyalty had not the servile, cringing quality of the fawning
342
publican, there was nothing common, in ideals and outlook, between him.
and the Congress Government. Future Government was bound to be
based on a positive policy, and an Advocate General had to be in tune with
that policy. Peary Lai Banerji’s appointment, therefore, was an experiment
into the darkness of the unknown, but it was hcped that his eminence, his
profound knowledge of law and the deep respect that he was bound to com-
mand, would smoothen the obstacles that might arise. That hope was not
belied, though no occasion arose for his attending the Legislature, even after
the right of the Advocate General to attend and take part in its proceedings
had been recognised by the Constitution.
Besides the love of the English language, Peary Lai Banerji appears
to have inherited from his father, the English habit of meticulous punctuality.
It was possible to regulate a watch by his daily routine; his sitting, inhis office
from 7.30 to 9 in the morning, and, summoned by the gong, at his dinner
table at 8.30 in the evening. Year after year, he would leave Allahabad,
for his summer vacation, by the forenoon train on the 20th of May. His
daily fees, for professional services were fixed and would not be varied, on
any provocation. The identity even of the pair of shoes that he would wear
on a particular day were known.
But regulated as his life was by a chronometer, Peary Lai Banerji
was a person of deep culture and sensibility. Culture had, in fact, walked
into his house when he married Shanta, the daughter of Shri S. P. Ganguli,
a close relative of Kabindra Nath Tagore. Peary Lai Banerji’s residence,
41 George Town, was named Shantavas after his wife, and, on two occasions,
Tagore came and stayed at Shantavas. Shri Ganguli himself lived there
for years and planned a beautiful garden of fruits and vegetables including
a Japanese miniature Table garden. In later years, the garden was enriched
and ornamented, with exquisite taste, by Peary Lai Banerji’s close and constant
friend, Pandit Narmadeshwar Upadhyaya, when it became a feast for the
eyes of the connoisseur.
343
Peary Lai Banerji, at the age of 25, joined the High Court Bar in 1908,
somewhat reluctantly, at the insistence of Dr. Satish Chandra Banerji. Many
advocates have found that part-time teaching in law, in the Allahabad
University, has been a stepping-stone either to the Bench or to eminence in
the profession. Peary Lai Banerji became, after Sir Tej Bahadur Sapru, a
part-time lecturer in law, but his rapid rise in the profession, soon engrossed
all his time and attention.
Peary Lai Banerji’s command over the English language was a marvel.
I have not myself heard any other Advocate in India having that matchless
combination of diction, rhythm and facility of speech. During about twenty
years that I had the privilege of hearing him, I cannot recollect a single
occasion when he hesitated or slurred over a word, or where a sentence, how-
soever complicated, once begun, had to be reconstructed. The regular
cadence that appeared to pour forth from an inexhaustible vocabulary was
never interrupted or disturbed. But it was not merely an amazing flow of
words. His language in the law courts, couched in phrases, inspired by
the width and variety of English literature and classic expressions in Privy
Council judgments, would have brought credit to any Advocate in the
world.
But a mere emphasis on the flow of words would give an inadequate
picture of Peary Lai Banerji. A facility of speech, or a seeming command
over words may merely be the smooth expression of a superficial acquaint-
ance with a problem. A facile jack of all trades, with a gift of the gab,
will not make a great or even a competent Advocate. The mind of a trained
Advocate is an apparatus and a technique of thinking. It is a storehouse
of classified relevant material, informed with commonsense, derived from
constant contact with the outside world. Peary Lai Banerji’s language was
the outward expression of ( a profound knowledge of law and precise thinking.
The depth of language was only the manifestation of the depth of his
thoughts.
The depth of the learning of an Advocate scatters itself through his
spoken words. It leaves no memorial behind. When it reaches the heart of a
Judge, it sometimes shines out, but only anonymously, through great and
immortal judgments. But there are occasions when the memory of a profound
and discerning mind is left in the archives of time. Let me illustrate :
A dispute of succession to the properties of the Majhauli Raj opened
in about 1923. The Raj was owned by an ancient family in which the
sister of Gautam Buddha had been married. It had a known and unbroken
descent of successive Rajas, beginning in the mist of antiquity, and right
through the Christian era. Succession to the Raj was governed by the
family custom of male lineal primogeniture. A Raja had died in 1911
and the Court of Wards was in possession on behalf of Rani Shyam
Sunder Kuer, the widow. The remote collateral, who was in possession of
a Babuai grant, given to his ancestors, claimed the estate against the widow.
He could only succeed if he still formed a joint family with the Raja
and was a member of the coparcenary of an impartible estate under the
Hindu Law. The defence to the claim was that the common ancestor had
lived 200 years away in the past, that for about a hundred years there
was not only separation in ownership of property, food, residence and
worship, but there had been a bitter feud, handed down from generation to
generation, between the family of the Raja and the family of the claimant.
It was inconceivable, said the defence, that the unstable cohesion of a joint
Hindu family, which is broken into separation by the mere jolt of an
expressed intention, could have withstood all the indicia of separation and the
bitter hostility of the Raja’s family with the remote family of the claimant.
Banerji appeared for the claimant on the date of issues and was called
upon to make a statement. He asserted that the claimant was a member
of the notional coparcenary of an impartible Raj and could lose his right
to succeed to the estate only by an express renunciation of his right to
succeed. His possession of a Bahai grant was conclusive evidence of
345
jointness and nothing else, said Banerji, was relied upon to establish
jointness.
On the state of authorities then, the confidence behind the statement, made
on the date of issues, was amazing. When the case went to trial, voluminous
evidence, which would have proved separation, ten times over, in an ordinary
Mitakshara family, was led. Shri T. N. Mulla, the District Judge, made
a clear and close analysis of the evidence and, relying upon the decision of the
Privy Council, in Tara Kumari's case, 42 I. A. 192, held that separation
had been proved. Peary Lai Banerji argued and won the appeal, in the
High Court, against that decision. But even before the decision of that
appeal by the High Court, in 1930, came the Privy Council decision in
Konammal’s case, 55 I. A. 114, in 1928.
Both in Konammal’s case and in the appeal from the decision of the
High Court, in the Majhauli Raj case, the Privy Council echoed the
very words which had been used by Peary Lai Banerji on the date of issues.
In saying, that the judgment of the District Judge in the Majhauli Raj
case was the only possible judgment, in the unsettled state of law on a
very vexed question, the Privy Council paid a silent tribute to the
insight of a person who had seen the law with clarity, even when
it had been submerged by the turbid atmosphere of uncertain judicial
pronouncements.
The appearance of Peary Lai Banerji and Kailas Nath Katju, against
each other, was a familiar sight in three or four decades that preceded
Mr. Banerji’ s death in 1952. The good fortune of those who have seen
them in action against each other is incomparable. Banerji marshalling
his facts and law, in an impressive array, like the timed rhythm of the march-
ing of an array of thousand disciplined feet, seldom looking at the Judge, even
when replying to a question, and carrying the case on the vehicle of clipped,
precise classical expressions and Kailas Nath Katju, the great case winner,
with an intellect that had the scintillating brilliance of a diamond, pulling
^ 346
out of the mass of facts and law, the unexpected winning points with adroit-
ness of a wizard. None of them depended on elaborate notes. Banerji’s
entire notes, in a heavy First Appeal, would consist of two pages of his
register, containing the exhibit numbers and pages of documents in the paper
book, chronologically arranged. Katju’ $ notes were even more scanty.
When a hostile Judge interrupted with an objection, Banerji, apparently
indifferent to results, would reply with words, telling and eloquent, that
would silence the objection by the mere weight of the reply. Katju, keen
for victory, would look up and say, “What, My Lord”. With a face full
of the delight of battle and with a twinkle in his eyes, he would bring out
the unanswerable point, that sometimes, even more effectively, met the objec-
tion. The one was a torrent that brushed aside obstacles by its volume and
weight, the other was a pointed arrow that, swiftly, sped and hit the bull’s
eye with accuracy and effect. Banerji and Katju against each other and
before a Full Bench consisting of Sulaiman, Lai Gopal Mukerji and
Niamatullah, presented a sight and an unforgettable experience and if the
gods were nearabout, they came to see and hear.
Banerji amassed a fortune in the practice of law. He had the habit,
formed from his earliest years, of depositing half his income as savings. He
had a horror of waste. He would, scrupulously, save the paper covers of
magazines and use them as note paper and even for sending informal communi-
cations to his friends. Nothing that could be utilized was ever thrown
away. His habits of economy were caricatured by a story of how, while
walking on the road, he once met an old friend of his father, who pointed
out the contrast between the coat that Banerji was putting on and the modern
tailored coats of his father ; and Banerji replied, pointing out to his own
coat— “But why do you say so, this in fact is my father's coat”. But his
regulated life and his thrift enabled him to leave, on his death, trusts, in favour
of his two sons and his brother George, each valued at several lakhs of
rupees.
347
Peary Lai Banerji had become an institution when he died. During
the last days, afflicted with ailments, he attended the High Court and the
Supreme Court, for the State of Uttar Pradesh, to oppose the challenge to
the Zamindari Abolition Act. It was a sad and solemn day for the High
Court, when, accompanied by the members of the Bench and Bar, his funeral
procession went on the last journey to the burning ghat. For myself, I
have never lost the feeling that, when I succeeded him,J obtained a “laurel,
greener from the brows of him who uttered nothing base .
348
Munshi Hanuman Prasad
By
SRI ONKAR NATH MEHROTRA
Advocate , High Court , Allahabad
N the early part of the 19th century a band of pioneers from what is
now known as eastern district of U.P. moved over for practice, to the
Sadar Dewani Adalat at Agra, where, under the guidance of their able
leader M. Man Aai, they established themselves in the legal profession.
Among them was a young and ambitious lawyer, Hanuman Prasad,
who drew special attention, on account of his legal acumen and mastery
of the Court language which was, at that time, Persianized Urdu.
He was born in a well-to-do Zamindar family of Varanasi, and, having
passed his Examination in Law, was appointed a munsif, his first posting
being at Mughalsarai. After some time his services were lent by the
Government to the Maharaja of Banaras, Sir Ishwari Prasad Narain Singh,
who appointed him Manager of his family domains. But, due to differences
with the Maharaja, he resigned from the Banaras State, as also, from
Government service, and on the advice of M. Man Rai, accompanied him
to Agra, where he lived at Gokulpura and started practice in the Sadar
Dewani Adalat.
By a Charter granted by Queen Victoria in the year 1866, the High
Court of Judicature at Allahabad came into existence.
So he shifted to Allahabad, and with the help of Mr. T. Conlan,
Bar-at-Law, who was his great friend, learnt English at the age of 45 and
for his part taught Persian and Urdu to Mr. Conlan. Both the teacher
and the taught performed their task with the utmost fidelity and soon
M. Hanuman Prasad was able to appear and argue his cases in English,
which had become the language of the High Court.
Before a Bench of the newly established High Court at Allahabad,
was, appearing a counsel clad in Acbkan and turban, when the Judge
remarked, “Munshiji, Yahan Angrezi Men Bahas Hoga, Urdu Ya Fharsi
Men Nahin”. Pat came the reply, “Yes, my Lord, I am fully prepared with
the case”. This surprised the Judges quite a bit. Thus appeared on the
horizon of the new High Court, a luminous star, M. Hanuman Prasad.
He soon became the acknowledged leader of the Bar and established
a very lucrative practice and was the Chief Editor of the Allahabad Weekly
Notes. The annals of. the Law Reports bear testimony to his merit and
ability. He was the seniormost among the founder members of the Vakils*
Association.
M. Hanuman Prasad was also a renowned social reformer, an erudite
scholar and a great philanthropist. He became the first and also the life
President of the Kayastha Pathsala Trust, which was founded by the late
M. Kali Prasad Kulbhaskar, himself a prominent and eminent lawyer of
the then Avadh Bar. The institution of the Kayastha Pathsala, under the
able patronage of M. Hanuman Prasad, laid the foundation for the present
Kayastha Pathsala Trust, which can now boast of several Degree Colleges
and Hostels including the Sampurnanand Hostel and Rajendra Chhatrawas.
Mr. Hanuman Prasad was a voracious reader. He built up a great
library, not only of Law, but on various subjects, e.g. History, Literature,
Religion, Urdu, Persian, Sanskrit, and even a volume of Japanese dictionary
can be found among his collections. He was a patron of music and himself
a musician of no mean merit. He loved horses and at one time his stable
could boast of as many as 30 horses of the best available breed.
Among his friends and contemporaries were eminent lawyers and
jurists, namely. Sir Arthur Colvin, Nawab Abdul Majid, Mr. T. Coni an,
Pt. Ajudhia Nath, Sir Sunder Lai and Sri Jogendra Nath Chaudhry.
Having amassed considerable wealth, he left behind him, as his legacy
when he died in 1888, not only great fame and fortune, but also a line of
worthy successors. His son M. Madho Prasad practised with him. One
of his grandsons, the lateRai Bahadur M. Gokul Prasad was elevated to the
Bench of the High Court on the 12th May, 1920, and was the last Hony-
Vice-Chancellor of the Allahabad University. Mr. Gokul Prasad was
succeeded by his son Shri Badri Narain, who made a fair mark in the legal
profession and officiated as Government Advocate for some time but died
at a young age of 45 years, in 1937. His son, Shri Ganesh Prasad, is a prac-
tising Advocate in the High Court and is the Honorary Secretary of the
High Court Bar Association. Munshi Ambika Prasad, another grand-
son of M. Hanuman Prasad is one of the leaders of the Bar on the Civil side.
He is a Vice-President of the High Court Bar Association and the President-
elect of the U. P. Lawyers* Conference, 1966.
Pandit Ajudhia Nath
By
MR. JUSTICE JAGDISH SAHAI
MONGST the giants that the Bar of this Court has produced,
Pandit Ajudhia Nath is one of the greatest as also one of the earliest.
His career was meteoric. Son of Pandit Kedar Nath, he was born at Agra
in a Kashmiri family on 8th of April, 1840 and died at Allahabad on
nth of January, 1892. In this span of less than 52 years he compressed
activities and achievements which another person would not succeed in
doing in a century.
His father was, for some time, the Diwan of the erstwhile state of
Jhajhar near Delhi and was a prominent citizen of his time.-
He learnt Arabic and Persian in his boyhood and acquired proficiency
in both the languages. Later on he acquired knowledge of English, studied
law and was enrolled as a pleader of the Sadar Dewani Adalat at Agra.
Even as a student, he showed signs of rare promise. The Government report
on popular education for the year 1860-61 referred to him as “an intelligent
and promising student” and to his answer-books in History and Philosophy
as marked by “uncommon acuteness and thought”.
Due to the unusual gifts with which nature had endowed him and to
which he added industry and application, he virtually marched into the
legal profession without having the usual waiting. His practice steadily
grew and by 1866 he was recognized as a leading member of the Bar of the
Sadar Dewani Adalat.
In the year 1869, a Law Professorship fell vacant in the Agra College,
to which he was appointed unsolicited, though there were a very large
number of applicants for the same.
When the Court moved from Agra to Allahabad, Pandit Ajudhia
Nath also shifted to this place. Here he added fresh laurels to his crown
and attained the status of one of the recognized leaders of the Bar and one
of the most prominent citizens of the country. His death created a void
and there was a widespread gloom all over the country. In the reference
on the occasion of his death. Sir John Edge, the then Chief Justice said “It
was always a pleasure to us to listen to, and we frequently derived instruction
from, the legal arguments of Pandit Ajudhia Nath. I confess that I have
not unfrequently been captivated by the display on sudden and difficult
emergencies in his case of his knowledge of law, the subtlety of his mind and
his persuasive powers.”
In this Court there was hardly a case of any importance or of any
magnitude in which Pandit Ajudhia Nath did not appear on behalf of either
of the parties. The Law Reports of his times are full of cases argued by
him. Their perusal bears testimony not only to Pandit Ajudhia Nath’s
mastery of law, but also to his great forensic talent and a capacity to put the
case for his clients at the highest level but without departing from the record.
It is not possible, in a short note like the present, to mention the various
cases in which he appeared in this Court, with marked distinction. I am
mentioning only some of the interesting ones. One of them is Empress
354 *££*>
of India vs. Sarmukh Singh (I. L. R. 2 All. 218) in which for the
first time the power of the Indian Legislature to enact a law was challenged
in an Indian court. In the year 1879, a soldier of the Indian Army serving
at Cyprus was charged for having committed murder there. He was put on
trial before an Agra Magistrate. The Magistrate refused to hold the
proceedings on the ground of want of jurisdiction. The local Government
brought the case to the High Court. The Division Bench, before which
it was listed, directed the Magistrate to enquire into the charge. After
his conviction, the soldier preferred an appeal to the High Court. Pandit
Ajudhia Nath, who appeared for the soldier in the High Court, challenged
the proceedings, on the ground of want of jurisdiction of the Court as also
on the ground that the law was ultra vires the Indian Legislature. The case
was referred to a Full Bench. The Full Bench held that the Court was not
precluded by the order of thej Division Bench from considering whether
the accused person has been rightly convicted. The question relating to
the vires of the law was left undecided with the observation that “the
answer to these questions in the affirmative might be successfully
disputed”.
In Lai Singh and others vs. Ghansham Singh (I. L. R. 9 All.
625), Pandit Ajudhia Nath challenged the constitution of the Full Bench
hearing the case on the ground that the High Court itself was not properly
constituted, inasmuch as, instead of there being a Chief Justice and five
other Judges, there were at that time only the Chief Justice and four other
Judges, the vacancy of the fifth Judge not having been filled up. Though
the submission was not accepted and it was held by the Full Bench that it
was not intended that if the Crown or the Government should omit to
fill up a vacancy among the Judges, under the powers conferred by section
7 of the High Courts Act so that the Court should consist of a Chief Justice
and four Judges only, the constitution of the Court should thereby be rendered
illegal, and the existing Judges, incompetent to exercise the functions assigned
355 ,
to the High Court. A reading of the Report of the case shows the forensic
powers and the grasp of constitutional law possessed by Pandit Ajudhia
Nath.
It will be interesting to note that at one time it was seriously urged that
the High Court of Judicature at Allahabad had only the power of superin-
tendence over the subordinate courts and not judicial powers to revise or inter-
fere with the orders of the subordinate courts. (Seel.L. R. 9 All: 104). Pandit
Ajudhia Nath appeared in the case and submitted that, by virtue of section
15 of 24 and 25 Viet. c. 104 (the Indian High Courts Act of 1861), the Court
had also judicial powers to interfere with or revise judicial orders passed by the
subordinate courts. The Full Bench, by a majority, held that, under section 15
of 24 and 25 Viet. c. 104, it is competentfor theHigh Court in the exercise of
its power of superintendence, to direct a subordinate court to do its duty
or to abstain from taking action in matters of which it has no cognizance,
but the High Court is not competent, in the exercise of this authority, to
interfere with and set right the orders of a subordinate court on the ground
that the order of the subordinate court has proceeded on an error of law or
on an error of fact. The minority view of this Court, which was expressed
by two out of the five Judges constituting the Full Bench, held that the word
“superintendence” used in section 15 of the Charter Act contemplated and
now included powers of a judicial or quasi-judicial character apart from
those conferred on the Court by section 622 of the Civil Procedure Code.
Pandit Ajudhia Nath commanded the esteem and respect of not only
the members of the Bar, but also of the Bench of the Court. In the
year 1888, the then Chief Justice offered to make him an Advocate of the
Court and thus extended to him the privileges which were then confined
to the members of the English Bar only (Barristers). Pandit Ajudhia Nath
declined the honour saying that he could not take it so long as the other
Vakils of the High Court did not get it. Later on, as is well known, some
other members of the Vakil Bar accepted to become Advocates.
356 -££*
Another instance, which shows the esteem in which Pandit Ajudhia
Nath was held by the Bench of this Court, is provided by what happened in
1889. Along with Pandit Ajudhia Nath was engaged a young English Barrister
who, by virtue of his being a member of the English Bar, had the right of
pre-audience. The appeal was being argued before a Bench of which the
Chief Justice was a member. The English Barrister stood up and opened
the case. The client, who was standing behind, wanted it to be argued
by Pandit Ajudhia Nath, and, for that reason, pulled from behind the English
Barristers gown more than once and also requested Pandit Ajudhia Nath
to argue the case. Insistent on his right the English Barrister continued
unbothered. The Bench noticed this and soon retired to their Chamber.
The young English Barrister was called by the Judges and was told not to behave
in the manner he had done and to allow Pandit Ajudhia Nath to argue
the appeal. Thereafter, the Bench re-assembled in the Court and Pandit
Ajudhia Nath concluded the arguments. Today, when we are living in the
sunshine of independence with a completely Indian Bar, it is not possible to
realise what talent and force of personality was required for an Indian, in the
second half of the nineteenth century to reach the highest rung of the professional
ladder. The Allahabad Bar of Pandit Ajudhia Nath’s time, like the Bars of
Calcutta, Bombay and Madras, was the virtual preserve of English Barristers.
It was given to Pandit Ajudhia Nath to break that close ring, force his
entry into the front rank of the Bar and attain the status of a doyen.
Even though law is notoriously a jealous mistress, Pandit Ajudhia
Nath did not confine his interest or attention to law alone. He was one
of the first nine members of the Legislative Council for the North-Western
Provinces and Oudh, which was established in 1886. He took full part in.
the proceedings of the Council and distinguished himself there.
He was intimately connected with the Indian National Congress, though
notoneofits founder members. How his connection started with the Congress is:
described by Mr. W. C. Bonerjee, its first President in the following words :
357
“I was here (Allahabad) in April 1887, and met Pandit Ajudhia
Nath who had not then expressed his view one way or the other about
Congress matters. I discussed the matter with him. He listened to
me with his usual courtesy and urbanity, and he pointed out to me
certain defects which he thought existed in our system; and at last
after a sympathetic hearing of over an hour and a half, he told me he
would think of all I had said to him, and that he would consider the
matter carefully and thoroughly, and then let me know his views. I
never heard anything from him from that time until on the eve of my
departure for Madras to attend the Congress of 1887. I then received
a letter from him in which he said I had made a convert of him to the
Congress cause, that he had thoroughly made up his mind to join
us, and he sent a message that if it pleased the Congress to hold its next
session at Allahabad in 1888, he would do all he could to make the
Congress a success. And you know certainly those of you who
attended know what success he did make of it.”
Pandit Ajudhia Nath was the Chairman of the Reception Committee
of the Congress Session of 1888 held at Allahabad. Of this, Mr.W. C.
Bonerjee has spoken as follows :
“Pandit Ajudhia Nath as you know, from the time he joined the
Congress worked early, worked late, worked with the old, worked
with the young, never spared any personal sacrifices, so that he might
do good to his country and to the Congress
Our venerable President of the Reception Committee of this Congress
had told us of the difficulties which had to be encountered to make
that Congress a success; and I do not belittle his services or those
of any other worthy Congressman who worked with him at that
Congress, when I say that it was owing to Pandit Ajudhia Nath’s
exertions that Congress was the success it was.”
In arranging the Congress Session at Allahabad, Pandit Ajudhia
■ 358
Nath had to encounter great opposition and difficulties. At that time the
sun of the British Raj was at its meridian and the bureaucratic administra-
tive set up could not countenance any progressive or political activity-in the
North-Western Provinces and Oudh. Both Dufferin, the Viceroy, and
Colvin, the Lieutenant-Governor, were opposed to the idea of a Congress
Session at Allahabad; butt he “intrepid and unselfish” Pandit succeeded
where others would have failed.
Pandit Ajudhia Nath’s services to the Congress and his steadfast and
dedicated devotion to it, though unfortunately forgotten now, received
universal contemporary recognition. When Mr. A. O. Hume left for
England, he, by general consent, was elected the Joint Secretary of the Con-
giess ; and it had been almost resolved to offer him, the honour of the chair
of the Seventh Congress Session held in 1891, had it not been for the feeling
that Bombay and Calcutta having till then supplied all the Presidents, Madras
should have a chance before the turn of the North-Western Provinces
came. For this reason, Rai Bahadur P. Ananda Charlu was chosen
to preside over the 1891-Session of the Congress at Nagpur. Pandit
Ajudhia Nath proposed the name of Rai Bahadur P. Ananda Charlu
and Sir Pherozshah Mehta seconded it. While seconding the proposition Sir
Pherozshah Mehta said : “I have great pleasure in seconding the resolution
which has been placed before you by the Hon’ble Pandit Ajudhia Nath. I
have no doubt that the delegates present would have rejoiced if the Hon’ble
Pandit himself had been voted to the chair this year. But we know that he
is as modest and unselfish as he is public spirited, patriotic and energetic.
But while we should have been glad to see the Pandit in the chair, we are
equally glad to hail as President this year, a representative from that
presidency which has done so much for the Congress.”
Rai Bahadur P. Ananda Charlu in his address said : “The Hon’ble
Pandit Ajudhia Nath is unfortunately for both you and me not a Madrasee.
Were it not that he generously abdicated the dignity in favour of Madras,
359
I should gladly have avoided the danger of accepting a situation that would
draw me into comparison with that unselfish, whole-hearted, intrepid, and
•outspoken apostle of this great National Movement. At this Session, one
of the resolutions moved by Pandit Ajudhia Nath was for reducing the inci-
dence of salt-tax and raising the income-tax taxable minimum from R_s .500
to Rs. 1,000.
When Pandit Ajudhia Nath died on nth January, 1892, on his
return from the Nagpur Congress Session, the whole country was plunged
ini n deep grief. At the Eighth Session of the Congress held in the year,
1892, Mr. W. C. Bonerjee spoke about him in the following words :
“Standing on this platform and speaking in this city, one feels almost
an overpowering sense of despair when one finds that the familiar figure
and the beloved face of Pandit Ajudhia Nath is no more. We
mourned for him when he died, we have mourned for him since ; and
those of us who had the privilege of knowing him intimately, of
perceiving his kindly heart, his great energy, his great devotion to the
Congress cause, and the sacrifices he made for that cause, will mourn
for him to the last.”
Sir William Wedderburn, in his book on Allan Octavian Hume,
writes : “As is well known there is no one for whom he (i. e. Allan Octavian
Hume) had a more sincere personal regard than Pandit Ajudhia Nath.”
To the cause of education Pandit Ajudhia Nath contributed generously
both in time and money. He was the founder of the Victoria School (now
Victoria College) at Agra. He was also a member of the Senates of both
the Allahabad and the Calcutta Universities. The Vice-Chancellor of
the Allahabad University, while speaking of Pandit Ajudhia Nath, observed :
“He took a very keen interest in education, was a constant attendant
at our meetings, and brought to bear upon our work intellectual powers
which only few possess. He was a man of whom any country and
any race might well be proud. His character was of the highest, his
ability was undoubted, and his acquirements were of the most varied
description.”
Pandit Ajudhia Nath gave attention to journalism also. In 1879
he started an English daily newspaper styled “The Indian Herald”. The
undertaking unfortunately proved to be a failure even though he spent a
lac of rupees in it. Undeterred he started another organ called “Indian
Union” in the year 1890 and Pandit Madan Mohan Malaviya was placed in
charge of it. The latter always acknowledged with gratitude his association
with Pandit Ajudhia Nath.
Pandit Ajudhia Nath’s connection with this Court has not ceased
with his death. Fortunately we have today in our midst his worthy son.
Pandit Gopinath Kunzru, who is a recognized leader of the Bar and is highly
respected.
The Centenary of the High Court and Pandit Ajudhia Nath are
separated from each other by almost 69 years. The Pandit has grown into
a legendary figure and even though the present generation had not the
privilege of seeing him, his name is still resounding into our ears. For us, who
stand separated by time from him, it is difficult to visualise what a towering,
compassionate and intellectual personality Pandit Ajudhia Nath was.
Fortunately, however, for us, the record of his achievements is preserved not only
in the Law Keports and the proceedings of Indian National Congress but
also in the proceedings of the North-Western Provinces and Oudh
Legislative Council and the Universities of Allahabad and Calcutta as also
in the legends that have grown round his famous name. On this day, when
we are celebrating the completion of hundred years of this Court, it is only
just and proper that we humbly remember him with reverence and gratitude.
^ 361
*
In Memorium
The Late Mr. Jogendra Nath Chaudhri
By
THE LATE RT. HON. SIR TEJ BAHADUR SAPRU
WAS away at Lucknow where I read in the papers of the death
||jJ of Mr. J. N. Chaudhri. The news did not come to me as a
surprise. I had met him a few days before I left for Lucknow
and notwithstanding the great power of physical resistance which he
possessed I felt when I saw him last that the end was not very far.
Nevertheless, the news saddened me more than I can say, for it revived
memories of a generation of lawyers, that is fast disappearing if it has
not already disappeared. He has died full of years— very few of us
can hope to attain to his age. He has died in the bosom of his family,
and his end has been as peaceful as his entire life was. For, it must be
remembered that he was, above everything else, a peace-loving man.
Gentility was the dominant note of his character, and no one of us, who
knew him at the zenith of his professional fame or who were privi-
3 63
leged to see him in his retirement, ever knew or felt that Mr. Chaudhri
had or could have an enemy, or that his placid nature could ever be
perturbed by events or things shaping otherwise than he expected or
would like them to do.
In the obituary speeches that were delivered in the High Court
the other day both Mr. Durga Charan Banerji and Mr. O’Conor paid
him generous tributes and Mr. O’Conor, himself a worthy representa-
tive of the old generation of ‘Leaders’, said how much he learnt in
his early days from hearing Mr. Chaudhri in the High Court. “May I
be permitted to pay my own tribute to his memory and give a few
of my recollections of the days when he divided the leadership in the
profession with the giants of those days ?”
The High Court in 1898
In 1898 when I shifted to the High Court as an inexperienced
and unlearned junior, the towering personalities in the profession were
Mr. Conlan, Mr. (afterwards Sir) Walter Colvin, Mr. Dwarkanath
Banerjee among the representatives of the English Bar, Pandit (after-
wards Sir) Sunderlal, Mr. Chaudhri, Munshi Ram Prasad and Pandit
Motilal Nehru— -happily still with us. To us juniors of those days,
they were awe-inspiring names, and some of us felt that they were
unapproachable. Mr. Conlan used to appear in some of the heavy
first appeals, his opening of his cases was a treat — so brief, so terse, so
lucid, and so forceful. Sir Walter was the recognized leader on the
criminal side— though he, not infrequently, was briefed in some impor-
tant civil appeals— and yet both of them were so kind, so generous, so
encouraging to the obscure juniors of these days when they had to
devil for them, that there are still two or three of us who can recall
their memories with genuine gratitude. Among the Indians,
364
the two most solid leaders were Pandit Sunderlal and Munshi Ram
Prasad. The former’s memory was supposed to be phenomenal and
his only rival in that respect was supposed to be Sir Promoda Charan
Banerji. He was in truth a store-house of case-law. Not only did
he know his ‘rulings’, but what is more he could make such effective
use of them. It was a few years later that he developed a fluency in
court which was all the more surprising to us when we found that,
outside the surroundings of a law court, his manner was halting, hesi-
tating and unimpressive. A profound lawyer, a resourceful advocate,
full of tact and skill, when he handled a complicated case you felt
that he knew not only the salient features of the case, but was a mas-
ter of the minutest details. Munshi Ram Prasad struck me in those
days as a man of great personal dignity, possessed of singular ease of
manner, brief, emphatic, and depending more upon a common-sense
view of the case than upon any legal subtleties. The rising star among
the leaders was Pandit Motilal. I speak with a reserve about him;
for, though a survivor of a generation that has disappeared, he may, I
hope and pray, be with us for many many years to come to remind us
of the brilliance, the clear thinking and the skill on which he built
up his reputation.
Mr. Chaudhri’s Advocacy
I now come to Mr. Chaudhri. It is difficult for me to say
what exactly was his place among these four men. Perhaps Sir
Sunderlal made more money in those days, but Mr. Chaudhri was
scarcely less sought after than any one of the three others whom I have
named above. His advocacy— I say so without disrespect to any one
else— seemed to me to be of a distinctive order. I had the privilege of
being associated with him as his junior in one important original trial
365
and a number of appeals in the High Court. There was no lawyer
who hated rulings more than he did; he positively discouraged his
junior from placing a long array of rulings before him, and yet his
grasp of principles was so firm, and so accurate. He could enunciate
a proposition of law so clearly, and convincingly that he found it
necessary on extremely rare occasions to discuss for any length of
time the case-law. He hated details— he was not in the habit of ma-
king copious notes— he cared more for what he once described to me
as the ‘pivotal facts’; and if he could win his case upon documentary
evidence, he would not touch the testimony of witnesses. When in
the original suit referred to above I gave him a short summary of
what the witnesses on both sides had sworn to, he said ‘Let us leave
our liars and their liars alone— let us go to the documents and the cir-
cumstantial evidence.’ And he never discussed ‘our liar’s and ‘their
liars’ and won the case for the client on the document and the cir-
cumstantial evidence.
In 1908, I was taken down to Patna before the District Judge
in a heavy original suit which involved some extremely difficult
questions of fact and law. My opponents were the Advocate-
General of Bengal, the late Mr. Umakali Mukerji and the late Mr.
Gopal Chandra Sastri of Calcutta. I was naturally very nervous,
and I suggested to the client that he might take a senior lawyer
to lead me. Mr. Chaudhri was approached, he was not well
enough to undertake the responsibility of conducting or arguing
a heavy case like that; but he agreed to go there to give me the
benefit of his advice on any question of law on which I might like
to consult him. The client agreed. Mr. Chaudhri preceded us
there a day earlier, as he wanted to avoid the night journey.
The next morning I joined him at the Patna Dak Bungalow
and there, for the first time, I gave him a very brief outline of the
case. He simply listened to me and expressed no opinion. At 10
he was ready to go with me to the court. Neither the client, nor I
wanted him to put himself to the trouble of going to court but he
said he would like to go. As soon as we reached the court, the case
was called on, and up sprang on his feet Mr. Chaudhri, much to my
consternation and to the consternation of my client and other
lawyers; for we felt that he had not read the brief, did not know the
pleadings or details, For forty-five minutes he addressed the court;
and a more masterly, more lucid, more logical opening it has seldom
been my lot to hear in all my professional life. My task had been
made distinctly easy when I followed him. The Advocate-General
came up to him during the midday adjournment of the court, and
very courteously expressed his admiiation of Mr, Chaudhri’s eloquent
opening. Eloquent he was, and no one else at Allahabad surpassed
or even equalled him in sheer eloquence. His eloquence was how-
ever very different from a certain class of eloquence which is, to say
the least, amusing in a court of law.
‘Dangerously Eloquent*
As Mr. O’Conor has said, he was a great literary purist.
Master of a polished diction, he marshalled his facts in such an
interesting manner, and he created such an atmosphere of sympathy
around him by his simple, homely phraseology, by his telling
delivery, that once Sir John Stanley described him so dangerously
eloquent that he felt it safe to reserve his judgment until he was
able to shake off the spell of his eloquence. He was the very soul
of honour and courtesy, and I remember an occasion when, as his
junior, I expressed my surprise that two learned Judges were not
disposed to accept his contention which seemed to me to be so sound
367
and so well-founded in principle and authority. He said to me
courteously— ‘Don’t be surprised— there are two possible sides to the
question. Perhaps they are right and I am wrong. In my case they
are dispassionate.’ That gives some idea of his intellectual tolerance
and courtesy.
A Contrast
Those were the days when one Indian judge on the Bench was
as much as we could hope for. He practised for forty- three years or
more at the Bar, his knowledge of law and human nature was unsur-
passed, his sense of impartiality and fairness beyond question, his
power of expression might have been envied by any one on the Bench
in his day. And yet no one ever thought of putting him on the
Bench. What a contrast between now and thirty or even twenty
years ago ! If the passage from the Bar ..to the Bench had been so
easy in those days as it is today, succeeding generations of lawyers
might have cherished with respect the authoritative pronouncements
of these giants of an earlier generation. As it is, we can only look
back to those days as the days when these men raised the stature of
the indigenous section of the profession, and we their successors have
every reason to curb our vanity and to acknowledge the debt we owe
to them.
A Man of Great Culture
Mr. Chaudhri had his own hobbies. Gardening and literature
of the highest order were his favourite modes of relaxation, and he
kept them up in his retirement. Passionately fond of the great
masters of English prose and poetry, he was never tired of reading
368
them again and again. He was thus not a mere lawyer, he was a man
of great culture which was reflected in his life as a lawyer and as a
gentleman. He never felt drawn to public life. Only once for a
very brief period did he think of going into the old Imperial Coun-
cil, but it was a fleeting thought and he told me— ‘Well, between me
and politics there is a wide gulf.’ My own feeling is that it was his
natural modesty or shyness which stood in his way and only if he had
taken to politics he would have by his eloquence, selflessness and
sanity of judgment enriched the public life of the country as he
undoubtedly enriched the professional life. Do not however let us
forget that every Indian, who, in his own sphere of life, rises to the
highest pinnacle to which he can rise or be permitted to rise, whether
he is a lawyer, a doctor, an engineer, or an administrator, or a
journalist, or a social reformer, enriches our life, makes us feel proud
of our present, and entitles us to claim a fuller and richer future.
That Mr. Chaudhri was a great advocate is beyond question, that he
was a greater gentleman we must acknowledge with pride, reverence
and affection.
369
Pandit Sir Sunder Lai
By
SRI KAZI MASUD HASAN
Advocate, High Court, Allahabad
pj|jj§HE story of the first fifty years of the life of the Allahabad
SUfi High Court is, by and large, the story of the genius of Pandit
Sunder Lai as legal luminary— lawyer and jurist— of almost unsur-
passed brilliance in the legal firmament.
Bom in 1857, 9 years before the birth of the High Court, he
entered its portals in 1881 and almost exclusively biased the
trail until the last two digits of the year of his debut in the 19th
century, reversed themselves in the 20th — having met with rather
premature death in the year 1918.
While yet an under-graduate, Pandit Sunder Lai passed the
Vakil’s examination of the High Court in 1880. He took his B. A.
^ yji
degree from the Calcutta University in 1881 and started regular prac-
tice as Vakil soon after. He showed early in his college career that
aptitude for hard work and regulated life which in later years account-
ed so much for his success in the exacting profession of Law. Sir
George Knox whose connexion with Allahabad goes back to the
seventies of the last century disclosed that Principal Harrison of Muir
College— who is reported to have been a very shrewd judge of men—
foretold a great future for young Sunder Lai, although, as is not
unoften the case, the qualities which make for success in what has
been said to be ‘the Great University of Life’ are somewhat different
from those which secure brilliant academic honours. Pandit Sunder
Lai possessed the former in super-abundant measure, and his entire
career as a lawyer and a public man, bears witness to it.
Both the branches of the profession comprised at that time
of some very eminent and able leaders. Men like Sir Walter Colvin,
Mr. Conlan, Mr. Hill and Mr. Ross among the Barristers and Munshi
Hanuman Prasad, Pandits Ayodhya Nath and BishambharNath, Munshi
Jwala Prasad, and Mr. Dwarka Nath Banerji among the Vakils occupied
the front rank of the profession in those days and it was not so easy
for Pandit Sunder Lai to assert his way up. In those hoary
days, judgment-writers were also appointed from among those
juniors who showed good promise of legal understanding. Two
such appointments were made when Sir Cower Patheram, Kt. became
Chief Justice of Allahabad High Court. These were Mr. (afterwards
Sir) Arthur Strachey and Pandit (afterwards Sir) Sunder Lai. Between
1889 and 1892 Pandit Sunder Lai’s practice kept going up and when
Pandit Ayodhya Nath died in 1892, he immediately shot up to the
top of the profession. In the years that followed his name was a
household word among the -litigant public during that quarter of the
century and there was scarcely :any case of note in the High Court in
* 2 ^= 372
which his services were not eagerly sought for by one party or the
other. He was a great case winner and the party whose briefs he
accepted always felt confident of success.
It was in 1896 that in recognition of his great talents and posi-
tion in the profession, the High Court raised him along with three
other leaders of the Bar, to the rank and status of Advocate, an honour
not bestowed before on any Vakil. During his long career he enjoyed
the respect and confidence of the Judges in unbounded-measure, and
as a retired Chief Justice once revealed to Sir Tej Bahadur Sapru,
when Pandit Sunder Lai argued a case, it was felt that there was
nothing more left to say on it.
His reading was not only very extensive and wide but also very
deep and his knowledge of the case-law Indian, English, Irish and
American, was almost unequalled. Whether he had to deal with an
intricate point of Hindu Law or Mohammedan Law, the law of Mort-
gages, or the Law of Wills, the Law of Procedure, or Accounts
or Company Law, he was equally at home with the subject and
knew almost every important case on the point and every change
in the Statutory Law or judicial decisions. But it would be a great
mistake to suppose that he was a slave of the case-law. He possessed
a firm mastery of the underlying principles of Law and the manner in
which he adroitly applied those principles to the cases that he had to
argue afforded great instruction to his j uniors. His marshalling of facts
was highly skilful. Indeed the marvellous lucidity with which he
unravelled some tangled mass of facts and analysed the evidence, the
resourcefulness which he showed in meeting the observations from
the bench, the sense of perspective that he always displayed and the
great knowledge that he possessed of human nature, extorted unquali-
fied admiration and respect for him both from his colleagues as well
as his opponents.
373
He had a persuasive manner and self-confidence born of knowledge
and thorough preparation, for, above anything else, what distinguish-
ed him in life, either as an advocate or as a public man, or as a
Judge, was his thoroughness. He was one of the few in India who
had attained that complete knowledge of Irish and American Law
which is so much sought after now. He had full acquaintance with
the rulings of Sadar Divani Adalat and other case-law of East India
Company’s time.
In a case relating to theft of electricity Panditji cross-exa-
mined one of the top Electrical Engineers of the country after
a thorough study of the entire electrical system. After the
cross-examination was over, the Engineer remarked that Panditji
knew as much about electricity and its distributary system as he
himself.
Strict professional probity was an article of faith with Pandit
Sunder Lai almost at par with his strong religious faith. To
illustrate his scrupulous professional behaviour the following
incident was often narrated by Sir Tej Bahadur Sapru :
Once Sir Tej Bahadur Sapru wanted to brief Pandit Sunder
Lai in a murder case. A prominent Rais who was also a lawyer
was involved in the case and Sir Tej Bahadur Sapru wanted Pandit
Sunder Lai to accept the briefs but he refused to take it up as he
did mostly civil work. The client insisted that he would like to be
defended only by Pandit Sunder Lai, and he offered a very fabulous
fee as retainer. The case created a big sensation at the time. On
great persuasion of Sir Tej Bahadur Sapru, Panditji had to accept
the brief. The case resulted in the acquittal of the client but the
two cheques for a large amount offered through Sir Tej Bahadur
Sapru to Pandit Sunder Lai remained uncashed on the ground that
no fee could be taken from a brother lawyer.
374 ^
There are many episodes preserved in admiring recollection by
the contemporaries of Pandit Sunder Lai depicting the enormous
labour, deep thinking and great tact and inimitable professional
integrity which he brought to bear in the discharge of his duties
towards his clients that have descended down to us. They are too
many to be re-counted here but it will not be out of place to repro-
duce an extract from the Resolution passed at an emergent meeting
of the Vakils’ Association on the 16th of February, 1918, on his
death. This will give a glimpse of the high place he held in the
estimation of his colleagues at the Bar.
“ During a long career at the Bar extending over 38
years, he achieved a distinction never surpassed by any other
member of the profession. His deep erudition, his wide culture, his
rare gift of advocacy, his honourable conduct as an Advocate, his
genuine regard for his colleagues and his unfailing courtesy to one
and all, won for him a unique position in the estimation of his
colleagues at the Bar, the litigants at large, and the members of the
Bench. In his death, the Association loses its brightest jewel and
the legal profession a member of the greatest distinction.”
His qualities were not of the showy or spectacular order,
which strike one instantaneously. He had none of the grand
manner, the glowing periods, and the epigramatic liveliness of
the Oxford Union. His address was quiet, respectful and confident.
The remarks of Lord Bryce anent the advocacy of Cairns that it was
“broad, massive, convincing with a robust urgency of logic which
seemed to grasp and fix you, so that while he spoke you could
fancy no conclusion possible, save that towards which he moved”
very aptly applied to Pandit Sunder Lai also.
It was in 1909 that he accepted a seat on the Bench of the
Judicial Commissioner’s Court at Lucknow for a few months and in
37/
1914 and 1916 for brief periods officiated as a Judge of the Allahabad
High Court and incidently he was the first Indian Advocate to be so
appointed. During this brief space of time he won golden opinions
of every one and some of his judgments bear eloquent testimony to
his vast l earnin g and remarkable thoroughness. His devotion to law
won for him a unique position. His profound learning, wonderful
memory and intimate acquaintance with the case-law was proverbial
and his wide range of reading, his firm grasp of principles, his
mastery of detail, dogged determination to dig down to the root of
tedious and complicated points, his untiring industry and power
of concentration, his wide sympathy and his innate sense of justice
made him a great judge.
With all his kindness of heart, he could not put up with
unpreparedness on the part of counsel and more than once put back
a case to compel him to master the facts. He felt this shortcoming
keenly although he never showed it by anything but a kind and
persuasive word or two. With all his gentleness he was strong
and firm of purpose and he knew how to insist on a point when his
mind was made up. No man could have reached the heights he
attained without an iron will and though everything seemed to
come easily to him, he could never have achieved such eminence
without having first gained mastery on his own self.
Public activities : Educational and political
No account of Pandit Sunder Lai’s life can be complete without
a mention, however cursory, of his public activities— educational
and political.
In 1893, Pandit Sunder Lai was appointed a member of
the Board .of. Law Examination for Vakils at Allahabad. In 1895 he
■was appointed member of the Syndicate of the Allahabad University.
He was member of the Committee which organised relief in different
parts of the Province during the famine of 1897. The Macdonald
Hindu Boarding House now known as Madan Mohan Malviya
College, the Red Cross Society, the City A. Y. Intermediate College,
the Crosthwaite Girls’ College and a very large number of other
institutions owe a lot to him for his advice and fin a ncial help.
He was indeed a great educationist and a front rank public man.
No one in his generation occupied the same position as he did in the
internal affairs of the Allahabad University. By solid work un-
ostentatiously performed he rose to be the Vice-Chancellor of that
University in 1906, and was incidently the first Indian to be so
appointed. He again held that office in 1912 and yet again in 1916.
His main work was done in the Syndicate and the Faculties where
his intimate knowledge, his clear-sightedness, his keen appreciation of
practical issue frequently turned the scale in the midst of a conflict
of arguments.
The distinction of Rai Bahadur was conferred on him in
1950, and the title of ‘C. I. E.’ in 1907, and later he was
Knighted.
When he accepted the office of Vice-Chancellor of the Benaras
Hindu University, he fully justified the feeling of every one at the
time that in the critical years of its infancy, his great experience,
his wonderful patience with critics friendly and hostile, his trans-
parent sincerity of purpose, his influence with the Government,
the princes, and the people, his devotion to the cause and above
all, his faith in its future, would be assets of the greatest possible
value to it even more than the munificent gifts and donations to
the funds of the University from him and other members of the
family which ran into several lakhs.
377
Although his professional work demanded a good deal of - his
attention, he did not, in the performance of his duties as a public
man associated in various capacities with a large number of institu-
tions, spare either time, money or energy. Everything which he
undertook to do was done by him cheerfully and ungrudgingly.
For nearly 14 years of his life, he was a member of the Provin-
cial Legislative Council and for sometime he sat in the Imperial
Legislative Council to assist at the time of passing of the Hindu
University Bill.
He appeared as a witness before the Decentralisation Commission
and also before the Royal Commission on Public Services, He
supported and advocated ardently many of the reforms which
his countrymen are enjoying. He possessed a most disciplined
intellect ; he had not the fiery temperament of a restless politician.
He had ideas and ideals but he would march with care. His
position in the politics of the country has been best defined as “a
constructive statesman and a patient idealist”.
The Man
Sri Sunder Lai was a student all his life. His intellectual
interest encompassed a very wide range. During his career as a
college student, he was devoted to chemistry but subsequently
developed a remarkable fondness for history. His reading was
of the most varied description. In private life he was gentle and
courteous to everyone, high and low, willing to help where help
was needed, singularly free from all show and pomp the very
soul of honour in business, a practical moralist whose life was a
life of purity and character. It is men of his type who by their
public work and private life, intellectual attainment and stainless
378.
character raise the level of the nation. Honours came to him thick
and fast from every quarter, but he never yearned for them. His
worst critics could not accuse him of being a self-seeking person.
He was equally loved and respected both by the people and the
Government.
Of him it could be truly said in the words of the poet :
On his unembarrassed brow
Nature had written ‘Gentleman ' •
Pandit Moti Lai Nehru
By
SRI N. D. OJHA
Advocate , High Court , Allahabad
■ PRINCE among men, Pandit Moti Lai Nehru was bom on May 6,.
I 1861 at Agra. The ancestors of Pandit Moti Lai Nehru, were Kaul
Brahmins and residents of Kashmir. Impressed by the scholarship of Pandit
Raj Kaul, King Farrukhsiyar brought him to Delhi in about 1716 and
granted a house to him for his residence by the side of the canal which used
to run through the heart of the city known as Chandni Chowk. As a
result of their residence on the bank of the canal or nahar the descendants:
of Pandit Raj Kaul became known as Nehrus. Pt. Raj Kaul’s grandson
was Pt. MausaRam Kaul whose son Pt. Laxmi Narayan was the first Vakil
of the East India Company at the Mughal Court, Delhi. Pt. Ganga Dhar,
son of Pt. Laxmi Narayan was a Police Officer in Delhi and as a result of
the Indian War of Independence of 1857, he had not only to lose his service
and other belongings but had to shift to Agra along with his wife Srimati
Jeorani and two sons Banshi Dhar and Nand Lai. Pt. Ganga Dhar died
at a premature age of 34 years and after about three months of his death
Srimati Jeorani gave birth to Moti Lai. At that time Srimati Jeorani was
financially hard up and Moti Lai had not the privilege unlike his illustrious
son of being born with a silver spoon in his mouth.
Moti Lai was brought up by his elder brother Nand Lai (grandfather
of R. K Nehru). After having been given lessons in Arabic and Persian
in his childhood, Moti Lai received English education and took to the pro-
fession of law like his elder brother Nand Lai.
He topped the list in the Vakils’ Examination and started practising
law in 1883 at Kanpur under the apprenticeship of Pandit Prithvi Nath.
Three years later, in 1886, Moti Lai shifted to Allahabad and started his
practice with his elder brother Nand Lai. At the very threshold of his
career Moti Lai was destined to shoulder the responsibility of a big family.
Pt. Nand Lai died in 1887 at an early age of 42 years leaving his wife and
five sons to be looked after by Moti Lai. His first wife and the son born of
her having died, Moti Lai married Srimati Swarup Rani and was blessed
on November 14, 1889 with the son who rose to be the first Prime Minister
of India.
Moti Lai had a phenomenal rise in the profession of law and while
still in his thirtees his income rose to be about Rs.2,000 per month and by
the time he crossed his forties it had reached five figures. What goes more
to his credit is that to reach the heights which he did in the profession of
law, Moti Lai had to march through a galaxy of giants of the Bar like Sir
Walter Colvin, T. Conlan, C. H. Hill, G. T. Spankie, A. Strachey,
Dillon, Sir Charles Ross Alston, Munshi Hanuman Prasad, Munshi
Jwala Prasad, Pt. Ajodhya Nath, Pt. Bishambhar Nath, Sir Sunder Lai,
Mr. Jogendra Nath Chaudhari, Munshi Ram Prasad, Mr. Dwarka Nath
Banerji and Babu Durga Charan Banerji. In recognition of his merits
the then Chief Justice Sir John Edge for the first time since the establishment
of the High Court admitted Pt. Moti Lai to the roll of advocates of the
Allahabad High Court in 1896 along with Pt. Sunder Lai, Mr. Jogendra
Nath Chaudhari and Munshi Ram Prasad and in 1909 he received
permission to appear and plead before the Judicial Committee of the Privy
Council. Moti Lai was not only a shrewd lawyer and incisive in argument
but also possessed in abundance a strong commonsense. He was a good
debater and had a gift of persuasive advocacy. He was a staunch friend
and a straightforward opponent. Being full of humour and a man of
ready wit he commanded the admiration of the Bench and the Bar alike.
Above all he was very industrious and conscious of the fact that there was
no short-cut to success in the profession of Law. In one of his letters to his
son who was then at Harrow Pt. Moti lal wrote —
“To my mind it is simple enough, I want money. I work for it
and I get it. There are many people who want it perhaps more than
I do, but they do not work and naturally enough do not get it.”
Moti Lal had handled numerous important cases of big Zamindars
and Taluqdars. One of such cases was the Ldkhm Raj case of district
Etawah which came to him in 1894 and remained with him for over thirty
years till ultimately his client succeeded from the Privy Council where Moti
Lal went and conducted the case. In the concluding phase alone of this
case Moti Lal received a fee ofRs. 1,52,000. It was in regard to this case
that Sir Grimwood Mears the then Chief Justice had observed that no man
•at any Bar in the world could have done that case better than Pt. Moti Lal Nehru.
The facts of this case are that Raja Jaswant Rao of Lakhna, district
Etawah had a son Rao Balwant Singh by his senior wife Rani Ratan
Kuar. Not being satisfied with the character of Rao Balwant Singh, the
Raja disinherited him and subsequently by a conditional deed of gift he
conferred his estate upon his junior wife Rani Kishori. Rao Balwant
Singh fought without success for the estate up to the Privy Council.
Rao Balwant Singh had three wives, Srimati Naraini Kuer, Srimati
Kaithiwali and Srimati Dunaju. After Rao Balwant Singh's death, Nar
3S3
Singh Kao claiming to be the son of Kao Balwant Singh and Srimati
Dunaju filed Suit no. 13 1 of 1916 against Kani Kishori and her daughter
Beti Mahalaxmi Bai as also against Srimati Kameshwari Devi, widow of
Kaghubans Kao son of Beti Mahalaxmi Bai to recover the estate which
was the subject-matter of the deed of gift aforesaid. Written statements were
filed in this suit under the signatures of both Moti Lai and Jawahar Lai and
Moti Lai appeared in this case from that stage up to its conclusion by the
decision of the Privy Council on 31st January, 1928. The main defence
to the suit was that the plaintiff was not the son of Kao Balwant Singh.
In the alternative, it was pleaded that even if a contrary assumption was made,
the plaintiff was not entitled to any part of the property by virtue of the
terms of the deed of gift aforesaid which had the effect of conferring an
absolute interest on Kani Kishori in the properties comprised therein.
In the trial court, the case was conducted by Tej Bahadur Sapru for
the plaintiff and Moti Lai for the defendants. The defendants’ case
was that Srimati Dunaju had never given birth to a child. Inspite of per-
sistent efforts having been made on behalf of the defendants, Srimati Dunaju
refused to submit to medical examination on one pretext or the other and
the suit was ultimately dismissed. The plaintiff filed an appeal in the High
Court at Allahabad and a futile effort was made at the appellate stage
also to get Srimati Dunaju medically examined. The appeal was dismissed
and Nar Singh Kao appealed to the Privy Council where he made an appli-
cation that his mother was prepared to get herself medically examined. This
application was allowed and Dr. Vaughan Sawyer and Dr. Miss A. Lauise
Mcllroy were nominated by the Board to examine the lady, who examined
Srimati Dunaju and certified her as having given birth to a child. Their
Lordships of the Privy Council on July 26 , 1926 ordered the High Court
to reconsider the whole case accepting the correctness of the certificate if
the High Court was satisfied about the identity of the lady who was medically
examined as aforesaid. The identity of the lady who got her examined was
not challenged and the High Court expressed its opinion that the suit was
liable to be decreed except for a portion of the properties in suit. Moti
Lai along with Sir John Simon appeared in the Privy Council for the defen-
dants-respondents and even after accepting that the plaintiff was the son
of Kao Balwant Singh his appeal was dismissed on the alternative case
taken by Pt. Moti Lai in the written statement that even if the plaintiff was
the son of Kao Balwant Singh he was not entitled to the estate on a correct
interpretation of the deed of gift aforesaid.
Moti Lai was a good cross-examiner and was known for his repartee.
He was once cross-examining a stiff-necked high Military Officer and while
he was putting some preliminary questions which appeared to the witness
to be superfluous he asked Moti Lai “Do you think me to be a fool >” and
promptly came the snub “Of course not. But perhaps I may be mistaken”.
At another occasion while he was addressing a jury and impressing
upon them not to get confused, the Judge observed “Never mind the jury,
the jury can look after itself”. And quick was the reply “My Lord that
may be so, but I want it to look after my client”.
Some of the other important cases conducted by Moti Lai, were the
Tamkohi Raj case at Gorakhpur, Amethi Raj (Sultanpur) case at
Lucknow, the Dumraon case at Arrah in Bihar and the Kayastha Path-
shala case.
In the Dumraon case Sir N. N. Sirkar a leading barrister from Calcutta
appeared with him and the famous Mr. C. K. Das appeared for the opposite
side. Having watched the manner in which Moti Lai conducted this case
Mr. C. K. Das is reported to have told Mr. N. N. Sirkar that he would
any day deem it an honour to work as Pt. Moti Lai’s junior.
Chief Justice Sir Courtney Terrell of the Patna High Court was so
impressed with his argument in the famous “The Searchlight case” that
he spoke very high of Pt. Moti Lai to the Maharaja of Darhhanga and thus
was Moti Lai engaged in the Darbhanga case.
385
Moti Lai earned a lot of money. At one stage during the struggle for
freedom it occurred to Jawaharlal Nehru that he was doing nothing to
earn a livelihood and when Moti Lai came to know about it, he affectionately
told him not to be distracted from his goal on account of money and the
reason given by him was that it would not be possible for the son to spend
even in a year what the father would easily earn in a week.
Moti Lai was known for his princely style of living and enviable
hospitality. He had a love for the latest and the best. He started his career
from a house located in the heart of the city of Allahabad but soon found
the environment not to be congenial and shifted to 9, Elgin Road, in the
Civil Lines. In 1900 he purchased from Kunwar Parmanand a house
opposite the Bharadwaj Ashram and renovated it to his choice. This house
was previously owned by Mr. Justice Mahmood. The famous poet “Akbar
Allahabadi” had named his house as “Ishrat Manzil” and on being asked by
Pt. Moti Lai to suggest a name for his house, he suggested “Anand Bhawan”
both connoting the same meaning — the Abode of Bliss.
Later when Moti Lai entered politics he renamed this house as “Swaraj
Bhawan” and gifted it to the Indian National Congress and the munificent
gift was accepted by the then Congress President who happened to be his
own son Jawaharlal. Moti Lai constructed another mansion adjacent to
his former house for his own residence which is now known as “Anand
Bhawan”. He was the first citizen of Allahabad to own a car which he
imported in 1904. Moti Lai placed his reputation much above money as
would be clear from a very apt illustration. The Raja of Amethi having
won his case referred to above offered a lakh of rupees to Pt. Moti Lai.
Instead of accepting such a huge sum Moti Lai asked the Raja to wait till
his emotion of victory had subsided. Subsequently, the Raja expressed
his desire to pay Rs. 25,000 cash and settle a few villages yielding an income
of about Rs.6,000 per year on his son Jawaharlal. Pt. Moti Lai again
refused the offer and the reason for doing so as explained by him to his son
386
was that had he accepted the offer he would have been condemned behind
his back and his reputation which he valued most would have suffered.
Shakespeare truly said :
“ The purest treasure mortal times afford,
Is spotless reputation ; that away,
Men are but gilded loam, or painted clay
His contempt for money becomes apparent from the following quota-
tion from a letter written by Moti Lai in 1920 to a very respectable client
on his expressing some difficulty in regard to payment of fees :
“No man in his senses can for a moment doubt the Supreme
Contempt I have always had for money. My whole life is an
illustration of this. I have so far been sought by it and have now
forcibly closed my doors in its face.”
It may be recalled that Moti Lai had by 1920 given up his active
practice and had plunged into the struggle for freedom.
Moti Lai was very affectionate to the members of his family and his love
for his son knew no bounds. The manner in which Jawaharlal was bred
and brought up and the education which Moti Lai gave him could be a
matter of envy even for a prince. On July 26, 1907, the father is reported
to have written to his son who was then receiving education in England
the following words of advice and blessings ‘‘Go on working, my dear boy,
as you have been— good, solid, steady work, interspersed with a fair amount
of recreation, amusement and exercise — and you will shine out as one of the
leading lights of your time”. There can be no manner of doubt that the son
respectfully acted upon the advice of his father and made himself worthy of
his blessings.
Moti Lai’s two daughters Sarup (Srimati Vijai Laxmi) and Krishna
had a similar paternal affection showered upon them which has held them
in good stead in the later years of their life. Moti Lai’s affection for his
only grand'child whom he called Indu was again unique and it seems that
the impact of the personality of the grandfather (Dadu) upon Indu was
greater than of her father (Papu). How proud would the grand old man
have been, had he lived to see his little Indu as the Prime Minister of
India.
Even though Mod Lai did not have any idea of entering active politics,
he was by force of circumstances brought into it, but once having entered it
he put his all at the disposal of the motherland.
“For our sakes, without question, he put from him all that he
cherished.
Simply as any that serve him he served and he perished.
All that Kings covet was his, and he flung it aside for us.
Simply as any that die in his service he died for us”. — Kipling.
His position as a political leader came to be recognised second only
to Mahatma Gandhi. Nearabout the beginning of the present century,
the Indian National Congress happened to be divided into two groups
known as Moderates and Extremists and at times a great tension prevailed
between them. In the beginning of 1907 a suggestion was made to Mod
Lai in a meeting held at Anand Bhawan to have a U. P. Provincial confer-
ence of the Congress organisation to be presided over by him. Moti Lai
was reluctant but had ultimately to accept the honour of presiding over
this conference. Moti Lai was influenced in his political career to a great
extent by Gokhale. Subsequently he fell under the spell of Mahatma Gandhi
and the relationship between Sabarmati and Anand Bhawan throughout
remained very cordial.
Moti Lai started his political career as a Moderate but in his later days
partly under the influence of his son and also because he was angered at
the attitude of the then Government he bade good-bye to the “Moderates”.
In 1910 he was elected to the Provincial Council. Later on he was elected
leader of the Swaraj Party in the Central Legislative Assembly and was
considered to be one of the foremost parliamentarians and an outstanding
388 egg*
leader of marked capacity. The speeches of Moti Lai inside the Legislative
Assembly and his addresses as President of the Indian National Congress
in its sessions at Amritsar and Calcutta are master pieces. Moti Lai had
to serve imprisonment several times in the cause of the motherland and
his first imprisonment took place on December 7, 1921, when he was arrested
at Anand Bhawan along with his son and is reported to have given the follow-
ing farewell message to his countrymen: “Having served you to the best
of my ability, it is now my high privilege to serve the motherland by going
to gaol with my only son.”
A description of Moti Lai’s personality would certainly be incomplete
without referring to his high sense of humour. He was universally loved
and admired for his wit and humour. It is not possible to give detailed
description of this part of his make-up in a short space and it will suffice to
give just one illustration of his sense of humour. On the eve of his departure
from Simla after walking out from the Legislative Assembly, as leader of
the Swaraj Party in pursuance of the mandate of the Kanpur Congress, an
extraordinary and amusing address was presented to him by a group of
distinguished ladies on September 18, 1926, in the following terms :
To Pt. Moti Lai Nehru, M. L. A., Leader, Swaraj Party.
On the opening day of Legislative Assembly, we the petitioners belong-
ing to the superior sex looking down from the heights of Heaven were much
grieved to behold the worthy leader of the Swaraj Party bereft of his moustache
and shed many tears. The petitioners consider that the leader of the Swaraj
Party has been guilty of destroying one of the beauty spots of the nation by
this sacrilege. By this ruthless act the Assembly hall looked denuded
of its best ornament as does the Divan-e-Khas without the peacock throne.
The petitioners consider this act on the part of the leader afcovenamed
to be a bad example to the other members of the Assembly. They t fear that
the other members may likewise take it into their heads to destroy other
beauty spots . . .
389
The undersigned petitioners hereby beseech Pt. Moti Lai Nehru and
pray to him on bended knees to allow the down like beautiful sumbal tresses
to adorn his face once more and thus restore one of the greatest national
monuments before the dawn of another year. (Names of signatories
omitted).
Pt. Moti Lai Nehru was, as might be expected, equal to the occasion
and replied to the members of the superior sex in the following terms :
“Mrs. Bhola Nath and others of the superior sex :
I am obliged to you for the address that has just been read. I shall
treat it as valued souvenir and it shall go to my children and children's child-
ren as an heirloom so that they may learn by the mistakes of their ancestor.
You have placed me in a great difficulty. My sense of chivalry extends to
the whole of the superior sex and I know there are those in it who admire
me and not merely my late moustache. It is impossible for me to say at the
present moment what the result of the plebiscite of the whole sex will
be. While I appreciate the whole sentiments you have expressed I must
find means to consulting those who have not signed this address. Being
accustomed to the procedure in the Assembly I can only think of the very
familiar motion that the bill be circulated for opinion. Meanwhile I
promise you that it will have my earnest consideration. (Here Sir Moham-
mad Shafi whispered something to the speaker who continued). My friend
Sir Mohammad Shafi who has not yet shaken off the dust of office suggests
another official formula and I gladly accept it. It is that I shall grow my
moustache again if it is necessary in the public interest. I hope this will
satisfy you. I thank you again for the interest ycu have taken in my mous-
tache. I hope I shall live to interest you in me as I am.”
The principal hobbies of Moti Lai were wrestling and shikar and to
know his religion, we have to turn' to Thomas Fuller's adage “A good
life is the only religion”.
On the passing away on February 6, 1931 at Lucknow of such a
390
great advocate, politician and patriot and above all ‘a finished gentleman
from top to toe/ the country was plunged in deep grief and innumerable
condolence resolutions were passed and references made on this occasion
including a full court reference in the High Court. Speaking on that
occasion on behalf of the Advocates’ Association Sir Iqbal Ahmad said :
“My Lords, it was my privilege to work as a junior to Pt. Moti Lai
and I can say without the least fear of contradiction that he stocd on
footing of his own and occupied a unique position in your Lordships’
Court. A lawyer of the keenest intellect, a brilliant advocate, a consum-
mate cross-examiner who was equally at home both in original and
appellate work, it was a pleasure to hear him argue a difficult case
either on facts or on law. My Lords, I can say without exaggeration
that I have not come across during my experience a greater advocate or
a more brilliant lawyer. Truly he was one of the giants of the profes-
sion. People like him raise the status and the dignity of the profession.
My Lords’ he has died full of years and full of honours. But his
death will be mourned by all who admire greatness in man and good-
ness of heart. The world is the poorer today than it was yesterday in
culture, in refinement, in ability and in learning.”
And the Chief Justice Sir Grimwood Mears observed : “With his
wide range of reading and the pleasure that he had taken in travel he was
a very delightful private companion and wherever he sat at a table there
was the head of the table and there was the centre of interest. He has left
behind a very great reputation in this court and his name will always be
associated with this Court and be one of the traditions of this Court.”
In the words of Wordsworth it can truly be said of him :
“Yet shall thy name , conspicuous and sublime.
Stand in the spacious firmament of time ,
Fixed as a star.”
391 =^2=
Munshi Ram Prasad
By
SRI SHAMBHU PRASAD
Advocate , High Court, Allahabad
H FTEK the annexation of the Punjab, which, despite the myth of hard-
fought battles, was never conquered, but was a gift to Dalhousie, the
author of the infamous doctrine of lapse by the Phulkean States, headed by
Patiala and assisted, in this perfidious game by Gulab Singh, the ruler of
Jammu, a fresh revenue settlement was considered necessary. Some Indian
officers of outstanding merit, with a special knowledge of revenue law, were
sent to the Punjab. One such officer was Munshi Madho Prasad, who was
then a Deputy Collector in these provinces. He served there with great
distinction. He belonged to Allahabad. He was the father of three sons,
Ajodhya Prasad, Kamta Prasad and Ram Prasad. The first two, like
their father, became Deputy Collectors. The third, the subject of this sketch,
was offered the same post, which was then the summit of an Indian’s ambi-
tion. But he chose the legal profession. He qualified himself as a Vakil
and settled down at Allahabad, his home town. He started practice in the
district courts. He soon picked up a good practice both on the civil side
and criminal. Those were not the days when a young man had to “luxuriate
in a briefless existence” and wait long; but, even as it was, his success was
almost phenomenal. He caught the eye of Mr. Knox, later Sir George
Knox, an Englishman of large and liberal sympathies, who was at that time
the Small Cause Court Judge, Allahabad, a post then reserved for the
members of the I. C. S. Mr. Knox secured him the post of the District
Government Pleader, which then was a very coveted office, both for its
emoluments and its dignity. It meant not only the titular, but also the
it facto, leadership of the Bar. Unlike today, when merit is not the only,
even the principal, test, the best men at the Bar used to be selected for the
office. He had already made his mark as a very astute lawyer with a com-
manding practice on both sides and his choice was not unexpected. He, it
was a foregone conclusion, eminently justified it. He was, after
a year or so, the undisputed leader of the District Bar. After a few years,
Sir P. C. Banerji was appointed to succeed Mr. Knox, who was elevated
to the office of the Legal Remembrancer, a post then marked out for members
of the I. C. S. of outstanding merit and ability. Sir P. C. Banerji was
the first Indian to hold that office. He too formed a very high opinion about
Munshi Ram Prasad. Then followed an event, unique in the annals of
judicial appointments.
Munshi Jwala Prasad, who was the Government Pleader, High Court
retired. The post was, according to tradition and practice, expected to go
to one of the leading and senior practitioners of the High Court. But, to
the surprise of all and disappointment of a few, it went to an unknown — at
least in the High Court— young man, who was a stranger to the High
Court. Mr. Knox, who, as said above, had formed a very high opinion
about the subject of this sketch, was then the Legal Remembrancer. The
office was virtually in his gift. He . straightaway appointed him Govern-
ment Pleader, High Court. It was a serious disappointment to the
candidates and aspirants for the office and attempts were not wanting to
make his task difficult. But, so well did he adapt himself to his new environ-
ments and so conspicuous was his success, that, in the very first case he
argued for the Crown — it was a Government appeal from acquittal in a
murder case, in which the Government Advocate had somewhat hurriedly
and unexpectedly passed on the brief* to him — he was openly and highly
complimented by Sir Douglas Straight, one of the ablest Judges, Allahabad
ever had.
But, in the case of Munshi Ram Prasad, the rubicon was crossed and,
within a few years, he shared the leadership of the Bar, on the civil side with
Colvin, Conlan and J. N. Chaudhri. Sunder Lai, though he had joined
the High Court earlier, came after him. Mod Lai Nehru was also rapidly
forging ahead. On the civil side, among the Barristers, was another very
gifted young man, Strachey who was also making very rapid strides both as
a civil and criminal lawyer. As Government Pleader he had to encounter
Sir Walter Colvin who was at the top also on the criminal side, Strachey
till his appointment as Government Advocate when Hill was raised to the
Bench at Calcutta, Charles Coleman Dillon, Ross Alston and Chamier.
Later Strachey went to Bombay as a puisne Judge and returned to Allahabad
as its Chief Justice. Chamier succeeded Strachey, then he went toLuckrxw
as the Judicial Commissioner, returned to Allahabad as a puisne Judge
and finally went to Patna as its first Chief Justice in 1915. What a galaxy
of names ! I had heard Dillon and Alston and Moti Lai Nehru too, once
or twice. When I think of the forensic encounters of these giants, I find
myself in the wonder-land. Would that those spacious days could come
back ! Then could we proudly say, what was said of those days that what
the Bar thinks today, that the rest of the country thinks tomorrow.
When my father entered the profession he straightaway joined the
Chamber of Munshi Ram Prasad. Father used to tell me amazing stcries
of the intellectual gifts of his senior. He was an all-rounder, a great advocate,
a perfect draftsman, a first rate case builder and a brilliant cross-examiner.
He could pick up the brief in no time, however complicated the facts or
heavy the brief or difficult the questions of law. There was something
Napoleonic in his mental equipment. Napoleon, they say, could do
several things at a time. Munshi Ram Prasad could, it is said, attend to
395
a number of his manifold activities at one and the same time. His arguments
were short, pithy, effective and left nothing to be desired. He was, for this
reason, a special favourite of the Judges. Father used to say that at Allahabad
Sir Walter Colvin alone could be mentioned in the same breath with
him. Both excelled in every branch of the law and in every phase of an
Advocate. Later in life I pointedly put it to Dr. Tej Bahadur Sapru, Mr.
Satya Chandra Mukerji and Munshi Haribans Sahai. They all agreed,
but Dr. Sapru added a rider. To him Conlan, Colvin and Ram Prasad
stood cn the same footing. But, be it noted, that Conlan was an exclusively
civil lawyer.
He was one of the four successful advocates whom Sir John Edge, for
the first time since the establishment of the High Court, raised to the status
of an advocate in 1896. It was a bold step of great imagination and, at
least in some measure, heaved down the barrier of ages. The other three were
J. N. Chaudhri, Sunderlal and Moti'Lal Nehru. There was hardly an im-
portant case in which he did not appear. He remained at the top till the end.
He was a man of versatile activities. He took a keen interest in the
educational problems of the country. He was the President of the Kayastha
Pathshala, then too, one of the foremost educational institutions of the Prov-
ince. Its founder, Munshi Kali Prasad, was one of the leaders ofthe Lucknow
Bar. Its first and life President was Munshi Hanuman Prasad, one of the
leaders of the Allahabad Bar. After the latter’s death the crown was placed
on the head of Munshi Ram Prasad and a more deserving choice could not
be made. Cassand-ras were not wanting who predicted a dismal future,
because, they argued, his hands were already too full. But, they all turned
out false prophets. To his massive mind the fresh responsibility hardly
meant an added burden. The institution made enormous strides during
his regime.
If a slight digression is permissible, Satish, before he formally joined
the legal profession had to acquire distinction of sitting at the feet of the
396 *££&
peerless Mahmood, as before him, Sir Arthur Strachey had done. Strachey
and Satish were Mahmood’s greatest pupils. To Munshi Ram Prasad and
Munshi Ram Prasad alone did the Kayastha Pathshala owe its distinguished
position. If Munshi Kali Prasad founded it and Munshi Hanuman Prasad
nursed it, it was during his regime that it flowered into something unique.
He was a deeply religious man. The magnificent temple built by
him and known after his name, with its lawns and other accessories, in the
heart of the town, is a monument of his devotion to his faith. Most of his
time, both morning and evening, was occupied with his religion. In the
morning, he hardly gave an hour to his profession or to his other activities.
His programme in the evening was characteristic of him. After return from
court, after a short rest, he would go with my father to his temple. Some
times I also accompanied him. Learned Pandits, Sadhus and religious
divines of other persuasions too, would gather and hold discussion till late
in the evening. I was too young to follow anything except this that even
in that august assembly he was like a “tall cliff” that dwarfed the rest.
Even as a young man he was sedate like Milton, whose
“Pleasures were of crimeless kind.
That ne’er taint the soul”.
One phase of MunshiRam Prasad’s character has always to be emphasised.
No junior in need approached him in vain. Preference may be made to
one case in particular. Munshi Ram Prasad assisted by my father argued a
heavy First Appeal from Aligarh for the appellants and convinced the Judges
in his favour. Mr. Conlan, replying for the respondent, cited in his favour
an English authority. Sunder Lai had brought cut the case, after great
deal of research, Conlan succeeded in almost turning the scale. My father
as though instinctively, rushed up to Dr. Satish Chandra Banerji, who though
still very young, had made his mark for scholarship. Satish gave father a
later English authority dissenting from the earlier one. The table turned
and Munshi Ram Prasad won. The client paid a heavy amount on account
397 *££*>
of what is ecluii cally callded shukrana. Munshi Ram Prasad directed father
to pass on the entire amount to young Satish. The latter declined, but was
ultimately prevailed upon to accept it. I know of only such instance. Placed
in similar circumstances, Mr. W. C. Bannerji gave the entire sum to a
young and obscure junior, who subsequently rose to unattainable heights—
Satyendra Prasanna Sinha, later Lord Sinha.
It is not surprising that he was not only respected, but also loved. On
the death of Hall am, Tennyson said :
“If all the world had known the heart
I would deem the praise he had it
yields, Scanty.
When Lam. Prasad died, Sir George Knox, then Acting Chief
Justice, spoke most feelingly :
- “I deem it a privilege that it was given to me as Legal Remembrancer
to appoint him Government Pleader of this Court. I am proud and
happy to say that, at no moment of his life, did he disappoint the
expectations I had then formed of him.”
A richer tribute to a lawyer could not be paid, never was it better
deserved.
It was said of Sir Rash Behari Ghosh that men like him, by their very
presence, raise the stature of the profession. So can it be said about the subject
of this sketch. As I dwell, in my mind, upon his exalted character and noble
heart, I feel that he possessed, what is essential for success in every sphere of
life, that great virtue, which Morley ascribed to Mill, his preceptor and guide,
“Wisdom and goodness
and that rare union of moral
ardour with a calm
and settled mind”
and, I might add, that generous purpose to give the best of himself to
every noble cause.
398
B. E. O’Conor
By
SRI HARI SWARUP
Advocate , High Court, Allahabad
a period of a littleless thanhalf a century, people saw in the corridors
HI the AllahabadHigh Court, a sober and silent Irish Barrister walking
witha slow and steady gait that showed neither worry nor anxiety. The big
round head hardly looked out-of-proportion on the short but plump body of
Mr. B. E. O’Conor. His broad forehead over the keen slim eyes hidden
behind a pair of round glasses, indicated the depth of his study and learning
and his clipped lips running across the face exhibited a confidence not
possessed by many.
After being called to the Bar in 1892, O’Conor joined the Allahabad
High Court in 1893, and without waiting long for briefs rose to a position
of eminence. With a two-volume Civil Court Manual he would enter the
court-room to do the cases prepared entirely by himself. He would watch
his cases with an index card in his hand and argue them with notes written
concisely on a roll of paper wrapped round a hardboard.
Mr. O’Conor like Sir Rufus Isacs and Sir Marshall Hall was a great
advocate of facts. His marshalling of facts was perfect, his presentation
thereof effective and arrangement superb. He knew that law was like pure
spirit which evaporates unless confined in the bottle of evidence and emits its
true aroma and colour only when poured in the glass of hard facts. With
his profound knowledge of the basic legal principles and the rudiments
of law, he could mould and present the facts with a magnetism that would
attract only * the favourable propositions of law. It was this rare ability of
marshalling the facts that made him the monopolist of the First Appeal work
in the High Court.
O’Conor’s success did not depend on the colour of his skin or the bulk
of his body. He had to compete with the legal giants like Sunder Lai and
Moti Lai Nehru, Satish Chandra Banerji and Tej Bahadur Sapru.
According to Sir Tej, O’Conor owed his success ‘not to any fictitious aid but
to his sterling merits, incorruptible honesty and integrity’ and what he consi-
dered to be a very necessary pre-requisite of a successful advocate, ‘independence
combined with respect to the bench*.
He was not an orator and his style was conversational. His control
over language was so good that he never stood in need of enlarging the volume
of his voice in order to make his words more emphatic or his reasoning more
appealable. He never proceeded to the next argument till the first one had
been properly injected into the mind of the Judge. O’Conor’s words spoken
slowly with confidence went straight to the ears of the Bench and his balanced
voice could not be missed by the Judges who heard his steam-roller arguments.
He was a master painter in words and the Judges hearing his running commen-
tary on evidence must have felt that they were looking at a slow-moving picture
of the whole case. He could present the case in its panoramic view and thus
make it exceedingly effective and impressive. He believed neither in wasting
words nor in being miserly about them.
O’Conor acquired the capacity for mathematical analysis, precision and
geometrical arrangements from his father who was a well-known statistician
of the Government of India. He applied this knowledge of arranging figures
to the systematisation of the facts of his case and achieved marvellous results.
He believed that the crux of every case lies in the facts on which it is based.
If O’Conor had to give advice to a young lawyer he would certainly
have told him : ‘ know your facts, marshal your facts, project your facts, ’
instead of giving the traditional advice : ‘know your facts, know your law,
know your Judge’. In his office-room, O’Conor maintained a surgeon’s
table on which he performed operations of his briefs. He used to carefully
dissect the whole case and then arrange his facts to give them a proper shape.
The operations were generally successful and the finished pictures were mostly
acceptable to those who heard the appeals. His control over facts was complete
and they danced to his tune of law.
O’Conor’s strategy of arguments can be illustrated by picking up and
analysing any of his cases. In the case of Bishambhar Das vs. Govind Das
reported in (1914) XII A. L. J. R. p. 552, O’Conor appeared for the defen-
dant-appellant and opened the case : “The real question in the case is not
whether according to the true construction of the Hindu Law and Usage a
sea-voyage is permissible to a Hindu, or whether going to or living in foreign
lands is an expiable sin. The subordinate judge has gone at great length
into a discussion of this matter which is entirely beside the point. The issue
does not arise in this suit, which is neither one for reinstatement to caste nor
one for damages against the defendant for outcasting the plantiff. The suit
is purely one for damages for defamation by the defendant, the defamation
consisting in the publication of the resolution of the Panchayat which was
held on 19th January, 1910.” He then critically analysed the evidence and
built up the structure of his arguments entirely on the basis of facts. He
pleaded that on the facts proved by evidence no case for the plaintiff was made
out. He cited no text books and relied on no case law.
He was opposed in the appeal by a counsel of no less eminence than
Satish Chandra Banerji accompanied by Tej Bahadur Sapru. The
respondent’s counsel started with the masterly exposition oflaw and quoted
from Odger’s ‘Libel and Slander/ Spencer Bower’s ‘Actionable Defama-
tion’, Pollock ‘on Torts’ and Wretheimer’s ‘Law relating to Clubs’ and
cited in support of his arguments five English authorities and six Indian
decisions. The whole argument was on a high legal plane and was studded
with maxims and canons of law.
O’Conor in his reply, again emphasised the pleadings and facts as
established by evidence in the case. But in order to give his arguments a colour
of legality or out of sheer respect for the arguments of his great opponents he
touched a few authorities.
Tudball, J., however, in the judgment of the court did not refer to any
of the text books or authorities cited at the Bar. The Court accepted the case
on facts as put by O’Conor and the propositions of law automatically flowed
in favour of the appellant’s case. The appeal was allowed with a remark
that the suit was misconceived and as put by O’Conor, the issue whether a
sea-voyage was permissible under the Hindu Law or living in foreign lands
was an expiable sin did not arise in the case.
O’Conor was the most skilled brick-layer of his age. He worked with
the bricks of legal evidence and used law only as mortar. He placed brick
over brick till the whole structure came up. He knew that no house can be
constructed with mortar alone and his phrase that 'a single brick cannot make
a building’ was too well known. As an architect he collected all his mate-
rials, made a plan of the whole structure and then went forward with the work
up to its completion, using as little mortar as possible.
O’Conor ranked amongst the topmost advocates that this Bar has
produced in its hundred years’ life. He was the last of the galaxy of British
barristers who played a leading part in the development of the free institution
of the Bar on which has always rested the responsibility of maintaining the
Rule of Law. He had helped in bringing to our judicial system not only the
British concept of unbiased justice, but also the British traditions of fearless
advocacy. He did his best to infuse in the Bar of Allahabad, a feeling of
independence and a firm belief in the power and supremacy of Law. It
was also his constant endeavour to maintain and develop among the Indian
members of the legal profession a sense of equality with the white people who
ruled the country. By his action and behaviour, he annihilated all distinc-
tions of class and colour and lived as a common member of the profession which
knows no discrimination.
Speaking of O’Conor as an advocate, Sir Tej Bahadur Sapru said :
“I have never known an opponent more fair and more courteous than O’Conor,
nor a colleague more loyal and more helpful than he His advocacy
was of an unusual kind. He knew the ins and outs of his briefs, as
very few people attempted to know. His arguments on facts particularly
were most impressive. His judgment on questions of law was also
sound.”
What O’Conor said about the advocacy of Sir Charles Ross Alston
can with equal, if not greater, propriety be said about O’Conor himself.
■“The outstanding feature of his advocacy was an absolute fearlessness combined
with a power of expression which rendered clear the most intricate matters
that he might have to deal with. With this he combined singularly his high
standard of professional honour and integrity and no one through all the years
that he appeared at the Bar can say that he deviated by a hair’s breadth
from the rules of the strictest professional propriety.” This man with untar-
nished integrity never gave an opportunity to any client to complain that
O’Conor had failed him. As a matter of principle he argued all his cases
himself and that too never without a thorough preparation.
He was an intrepid advocate, who was never ruffled or excited, but
always maintained his calm. ‘No matter how keen the contest’ said Justice
Sir John Thom, ‘no matter how strenuous the fight, he never at any time
exhibited rancour or ill-feeling ; and in the end of the day he maintained
undiminished the respect and affection of all who knew him.
O’Conor would have been shocked to sit in a supersonic jet plane dart-
ing with tremendous speed. He never liked to rush or go fast. Whether it
was a court-corridor in which he walked or a court-room in which he argued
or it was a road leading to the High Court, on which his contemporaries were
speeding in their cars, he never went with high speed. He never argued fast,
never walked fast and never used a fast vehicle but always rode his single-
horsed brougham which kept a steady pace.
He was a man of unassuming habits. He believed that the acts of
kindness should never see the light of day and that good be always done by
stealth. His heart was full of ‘the milk of human kindness’ and he was in-
capable of anything suggestive of meanness. The best compliment which
he would have liked to get was a recognition of the fact that he was a ‘true
gentleman’. And O’Conor amply deserved the compliment.
O’Conor lived a secluded life — a life without friends and foes, a life away
from the hustle and bustle of society. He was devoted to the cause of his
client and perfection in work was his only motto. He had few visitors and
himself rarely visited any friends and made no exception in the case ot his white
colleagues. It is difficult to discover the cause of his social shyness ; may be,
it was his devotion to work or the psychological make-up of his mind. His
interest was confined to the characters in his briefs and did not extend to the
people around him. Probably he considered discussions of things other than
professional briefs, nothing better than conversation about weather, just a
waste.
O’Conor in the evening of his life preferred not to keep a kitchen but
dined in a hotel or at a friend’s place. But there were neither too many
hotels nor too many friends to necessitate a change. He needed a companion
at the table but got none at his own. He lived a life confined to himself and
nobody could know if he was internally happy or not.
404
His drawing room which was rarely visited by his colleagues and Judges,
contained heavy wooden furniture to match his own form. There were also
some pieces of curios showing his remote interest in art and antiquity. On the
walls were hung a number of pictures, some of which were of landscapes and
others contained portraits of persons who were not always decoratively, classi-
cally or sufficiently attired. The entire furnishing and the get-up of the house
presented a general impression that it was the home of a person who believed
in a life of labour, a life of contentment and a life of seclusion.
19, Thornhill Road was not a noisy place. The master lived alone in
the house as he had no wife, but it did not have the silence of solitude. Birds,
pretty and musical, throbbed the space with their exhilarating songs and charm-
ing presence. He loved chirping and dancing of birds and enjoyed their
melody. In the backyard of his bungalow there were cages for coloured
pigeons, speaking parrots, love-birds and robin redbreasts. In the spare
time that he got, O’Conor sat down in his flowery green to enjoy their com-
pany and frolicked with smart flamingoes strutting around on their long legs
with swinging necks and scarlet feathers.
After having lived for about 69 years a life of hard work, he passed away
quietly on July 21, 1937, leaving behind him, for the generations to
come, the memory of a glowing professional traditio ard labour, fearless
advocacy and unimpeachable integrity. He died with animosity towards
none and charity towards all.
Dr. Satish Chandra Banerji
By
MR. JUSTICE GYANENDRA KUMAR
write about Dr. Satish is to re-open that glorious past of this
Court which may perhaps never return. Few probably of
the present generation of lawyers can have a perception of his true
moral and intellectual dimensions. Indeed how little do we
know of him, when there is so much to be known. Dr. Satish
lived in an age of great contemporaries and most of them lived
longer than him but whether their achievements would live longer
than his is left to the judgment of posterity. Some of the notable
figures in the legal sphere, who then seemed to tower, may have
shrunk in stature with the passage of time, but the same is not our
fear for Dr. Satish. The present is so different from the past that
it is difficult to see it a part thereof, as a link in a definite,
continuous chain of forms and traditions. That our vision has
missed him is too obvious and perhaps a correct accusation against
us. His message seems lost to us and if we still try to bring,
it , to our ears, we fondly hope we shall not aberrate. As we glean
the account of his life, we find it one of perfect consecration,
a life which had only intent study and learning as its portion, a life
indeed unbroken in its course.
Satish Chandra Banerji was born on 20th June, 1871 at Agra.
He was the second son of the Late B. Avinash Chandra Banerji, who
was a Judge, Small Cause Court. The places where Dr. Satish
received education were determined by the uncertainties of his
father's transfer from place to place. He had his early schooling
in the Government High School, Allahabad. The late Pt. Madan
Mohan Malviya was then a teacher there— Dr. Satish being one of his
students. On his father’s transfer to Aligarh, he joined the M. A. O.
College, Aligarh. In this institution assembled distinguished
scholars to diffuse learning to their pupils, such as Sir Theodore
Morrison, Prof. Wallace, Theodore Arnold and the distinguished
Shakespearean, Prof. Raleigh. Of these. Prof. Wallace and Theodore
Arnold evinced keen interest in Satish. It was their association
that kindled in him a devotion to literature and philosophy. On
his father’s re-transfer to Agra, he joined the Agra College. The
Principal there was a Scotch— Mr. Thompson, a profound scholar
of philosophy. Satish had been barely a few months in his class,
when Thompson saw in him the gleam of philosophic talent ; and
with this discovery in his pupil, his interest in Satish became more
intense, rather personal. The College library, as also the Principal’s
personal library, were left at the disposal of Satish. These years of
his with Mr. Thompson saw the growing of the latent seed of
philosophy in him to a fruitful flowering.
Mr. Andrews, a distinguished scholar of Cambridge was another
professor who attracted Dr. Satish. In Prof. Andrews, Satish found
a true guide for his literary pursuits and his study of Elizabethan
literature and mid-Victorian poets under Prof. Andrews became
408
very profound. Shakespeare has been the endeavour of every literary
critic but few of them have been able to see him truly. Some have
seen him only through the spectacles of their imagination, while
others only through that of their intellect, with the result that their
delineation of the subject only leaves a legacy of paradoxes and
contradictions. To say that very few scholars who have devoted
themselves to the study of Shakespeare have had that exact and
intuitive perception of him as Dr. Satish would be no exaggeration.
In interpreting Shakespeare, novelty is its own condemnation.
Shakespeare, as Dr. Satish saw him, was a poet of concrete things,
deeply concerned with human nature the same eternal joys and
sorrows, virtues and sins of flesh, which not only the poet but the
weaker mortals are also permitted to see. His commentation of the
views of Gervinus on Shakespeare as a moralist was greatly acclaimed
*
by Prof. Dowden who readily accepted his suggestions.
The academic laurels of Dr. Satish are really unique. In 1890
he sat for his B. A. examination in Allahabad and Calcutta Universi-
ties simultaneously and in both he secured a first class first, with
honours in English Literature. While yet a student of M. A.
class, he brought out an edition of Tennyson’s ‘Princess’ with a
most learned synthetical introduction. Again in 1892, he sat for
his M. A. simultaneously in the Calcutta and Allahabad Universities
and topped at both the places. In the same year he brought out a
philosophical treatise containing the dialogues of Berkley with his
critical introduction reviewing the history and progress of English
idealism. Prof. Fraser, a reputed authority on Berkley, was so
much struck by the merit of this work that he came to regard Dr.
Satish as one of the greatest scholars on Berkley outside England.
In 1892, on the death of his father, he took a professorial job in the
Hugli College, Calcutta. There, he won the Prem Chand Rai Chand
409
Scholarship, which was the highest honour an Indian scholar could
aspire for. His thesis on Sankhya philosophy received the acclamation
of Max Muller, who, in his later work, has paid the highest tribute to
the talent of Dr. Satish. His research on Sanhhya philosophy has
achieved its mission and has won many to the study of the sources
of Hindu thought. With so rare a literary talent and the meditative-
ness of a philosopher in him, one naturally expected him to remain
in the academic sacrarium, but it is not always that the expected
happens. It was the sphere of law and not the university which
was to see the fulfilment of his destiny and perhaps with not less lustre.
Satish started attending Sir Frederick Pollock’s Tagore Law
Lectures on the law of fraud and misrepresentation. He appeared
for the law examination and got the first position; but owing to
shortage of his attendance, the gold medal could not go to him.
So poignant was Sir Frederick’s grief at this unkind cut that he
persuaded the University to award a special medal to Dr. Satish as a
tribute to his merit. In 1894, after passing the LL. B. examination
from the Allahabad University, he started his professional career at
Lucknow as a Junior of Saiyed Mahmood, who had just joined the
Bar after his resignation from the Bench of this Court. Dr. Satish,
by his acumen and assiduity, soon won the heart of Mahmood, who
found in him a true intellectual companion. His stay with
Mahmood was, however, not long and in 1896 he shifted to Allah-
abad permanently. After a few months’ stay in the district courts,
he was allowed by the Chief Justice, Sir John Edge, to practise in
the High Court. His first few years in the High Court were the
years of usual waiting. With practically no briefs during this
period, he devoted himself with single-mindedness to the study of
Indian and Continental laws. In 1900, he took his honours in law and
just a year later earned his doctorate in laws. These were the years
of quiet study for him ; but a man of his gifts, even with occasional
appearance in the Courts, was unlikely to remain in obscurity.
His erudition and vision in law had captured the attention of every
one and even the most sceptical of his colleagues were not reluctant
to acknowledge his learning. Day by day he was gaining recogni-
tion and every one looked ahead of him a brilliant future. The
chance came to him in 1901 in the LandhauraRaj case, which was
proceeding in the trial court at Saharanpur. His performance in the
case struck every eye and he began to be frequently offered engage-
ments in the outstation briefs, particularly in the western districts
of the province. Dr. Satish was now walking with vigorous strides
in the profession, and by 1905 he was able to build up a large prac-
tice on the second appellate side. Even in First Appeals the litigants
began to engage him. In 1905 he was enrolled as an advocate and
in another two years he was to be found in the front rank. He
was inundated not only with the High Court briefs but also with
the outstation ones. So unquestionable had become his position
at the Bar that even in the Judicial Commissioner’s Court at
Lucknow his appearance became quite frequent. Those who possess
some recollection of Dr. Satish say that in his deportment he was
meek and humble, in his conversation always savoury. He could
maintain -his bon bomie and equanimity even under the gravest
provocation. He never over-elaborated his arguments, being
averse to display of learning beyond the imperative requirement of
the occasion, nor did he make himself abstract to appear profound.
He was always easy to follow. In him one could see the combina-
tion of exact statement, logical precision and lucid exposition.
Rarely was to be found so much of substance so admirably dressed
and flavoured, in so small a receptacle. The rapidity with which his
point could reach the mind of the J udge conveys how in a few words
411
he could offer the quintessence of the whole theme of his contentious.
In his arguments the reason of law always prevailed over the rule of
law — Ratio legis esf ctnwM legis — reason of law is the soul of
law, and this maxim seemed to guide his approach to law. Some of
the cases in which he appeared have attained the rank of causes
celebres.
But the charm of how he stood to argue and his success in
what he argued should not obscure the more worthy and lasting
product of his genius. The truth is, Scripta manent verba volent—
written words remain, spoken words fly. What he leaves behind
for posterity is his treatise on the law of Specific Relief. In 1906,
he was offered the chair of Tagore Law Professor. Needless to say
that his Tagore Law lectures on the law of Specific Relief remain a
legal classic and an authority on the subject in India up to this day
and have not been superseded in rank even by the foreign commen-
taries. Every principle of equity has been unearthed by him in his
work in an endeavour to elucidate with certainty the main
principles and the precise extent of the law of Specific Relief. Sir
Ashutosh Mukerji, in his foreword to the “Law of Specific Relief
in British India” a homogeneous treatise of the Tagore Law
Lectures by Dr. Satish, writes— “The monumental work, which has
now reached its second edition, was on its first publication, acclaim-
ed in legal circles as a triumph of erudition and research, while
the accuracy and lucidity of the exposition of legal principles
which throughout characterised the work marked it out as a contri-
bution of enduring value It would be only too true to say that,
as a legal writer, Dr. Satish had few equals and perhaps no superior.
Though a busy lawyer, his part in the public life was quite
active. Just a month before his death he was elected to the Legis-
lative Council as a representative of the Allahabad University of
412
which he was a fellow. He was the Secretary of the 25th Indian
National Congress, and was elected as President of the U. P. Congress
Committee in 1914- In the same year he was made the Chairman of
the Committee of the non-official famine relief organisation started
by the Servants of India Society. He was one of the Secretaries of
the first United Provinces (Political) Conference ; and over its
seventh session he presided. A man of pen that he was, his interest
in the sphere of journalism was very natural. The proposal to start
a nationalist newspaper in Allahabad had long been felt and in start-
ing the ‘Indian People’ his contribution went a long way. Later
on when ‘Indian People’ was transformed into ‘The Leader’ he was
one of the first chairmen of its board of directors. Such was the
life of Dr. Satish, a life lived in deeds not in years. It was a life
of purest devotion, intense action, and thought and quite naturally
it consumed him prematurely. With a feeble constitution he broke
under the pressure of work, and, on the 8th of June, 1915, he quitted
the land of the living at the early age of 44. So quietly he accept-
ed his illness that none could know of his grave condition until
the happening of the inevitable.
The career of Dr. Satish is meteoric, not merely an event,
but a portent. From his joining the High Court in 1896 to his
death in 1915 not even two decades had intervened and in such a
brief span he attained what most of us would not in our whole
lifetime. To die is as natural as to be born, but deep is our grief
when death leaps upon us without our toils being over. Death has
no regard to the convenience of mortals nor does it hear our suppli-
cations. May be, those dear to us are dearer to the Lord. “Those
whom gods love die young”, and perhaps this seems to be a truer
answer why the more virtuous break early their connections with
the inhabitants of the earth. The history of the Allahabad Bar
413
has not a more spotless character to commemorate ; incor-
ruptible in integrity, modest without diffidence, learned without
vanity, independent and dignified without asperity or pride. Dis-
tinction is the consequence, not the object of great minds; the
truly great strive more for the approbation of God, and such
was Dr. Satish. The light that shone through the frame of clay is
not extinct, it still radiates through the pages of his Tagore Law
lectures.
What inscription should we choose for his portrait? Not the
words recalling his marvels but those transmitting the sublime
truth, which he had himself chosen for his late father :
‘He is not dead whose noble life
heads thine on high.
To live in hearts we leave behind
Is not to die’.
414
%
Sir Tej Bahadur Sapru
By
SRI M. N. SHUKLA
Advocate , High Court , Allahabad
“And though that he were worthy, he was wys.
And of his port as meke as is a mayde
He never yet no vileinye ne sayde
In al his lyf, unto no manner wight.
He was a verray parfit gentil knight .”
— Chaucer.
H| ESjiHOSE celebrated lines from the author of the ‘Prologue to Canterbury
Tales’ have always appeared tome to contain, as it were, the quintes-
sence of the personality and character of Sir Tej Bahadur Sapru— his wisdom,
ability, moral greatness, in short, his over-all perfection. Sir Tej stands unique
and almost unparalleled in the legal history of India. As his great contem-
415 =5^=
porary Doctor Kailas Nath Katju, himself a stalwart, who has achieved
fame in the triple spheres of law, politics and administration, aptly remarked,
“The Allahabad Bar does not still realise the immensity of its obligations
to the personality of Dr. Sapru. Not only numerous beginners have sat
at his feet, but his chamber has been the nursery of Judges. He is the soul
of honour, and his uprightness of conduct and his professional rectitude
have been a beacon light to lawyers throughout the United Provinces all
these years.” Paying tribute to his extraordinary natural gifts Kt. Hon’ble
Srinivas Sastri in his inimitable style observed, “Nature fashioned Sapru in
one of her lavish moods. She put into his blood several elements of
greatness— generous susceptibilities, scorn of meanness, large ideas, command
of men.” But for all his great and exceptional qualities he was not wholly
without his share of foibles, ‘some glaring weaknesses such as changeable-
ness, love of flattery, pronounced moodiness’. Perhaps that is what made
him more interesting, lively and intensely human. His intellect too had mark-
ed merits and demerits. It dwelt easily among large ideas and fundamentals,
and could acquire and impart with zest. But minutiae could escape his
mind, and he was capable of great inaccuracies and inconsistencies. This
only served to reveal to the truly discerning admirer the more amiable and
human traits of a titanic figure, which was essentially cast in the heroic
mould, and which came like a mighty Colossus, bestriding over narrow
world.
The finest flower of the Victorian era— unjustly criticised by carping
critics for its “cold priggishness and smug self-complacency” — Sir Tej
Bahadur Sapru retained throughout his life the typical characteristics of
its culture and outlook on life. He was born at Aligarh in 1875, when
Queen Victoria had been for thirty-eight years on the throne of England,
and only two years since in 1877 she assumed the title of the Empress of
India — which marked the beginning of the train of events which was to
culminate in the hey-day of British imperialism in this country. Descended
from an aristocratic family of Dewans, Sapru naturally grew up in a back-
ground of Muslim culture and language— which had been pampered by foreign
rulers— and an appreciation of the British political and legal system, and its
institutions in general. From his infancy he showed signs of uncommon
intellectual ability and had to his credit an extremely brilliant academic
career. He took his M. A. degree from the Agra College, Agra in English
in the first division, securing the first position in order of merit. In 1898
he joined the Allahabad High Court Bar. In 1902 he earned the degree
of Doctor of Laws and in 1906 was enrolled as an Advocate of the High
Court.
He passed through a comparatively short period of waiting and brief-
lessDess. Within about five years of his joining the Bar he got the oppor-
tunity of opposing India’s top-most lawyer of the time, viz. Sir Rash Behari
Ghosh. The case involved principles of Hindu Law and he argued it so
brilliantly that in a day he found his feet in the profession. He had crossed
the Rubicon, and then he began to climb the heights which his genius
entitled him to. His fame spread all over India when he fought successfully
a Taluka case in Oudh Chief Court and aWaqf case in rhe Allahabad
High Court. From all parts of the country statesmen, business magnates,
members of the landed aristocracy and rulers of native States came to seek
his legal advice. He conducted with remarkable skill a large number of
big Taluka cases. He also appeared as the defence counsel in the enquiries
against the Maharaja of Patiala, the Maharaja ofNabha and the Maharaja
of Rewa. His deep knowledge of constitutional law was reflected in his
vigorous advocacy in the case involving the boundary dispute between the
State of Cochin and the Government of India. In 1920 he was appointed
the Law Member of the Government of India in recognition of his scholar-
ship in the domain of constitutional law. During his meteoric career in the
profession for about half a century he was thrice offered Judgeship of the
High Court, but he respectfully declined to accept the same.
417
Although he was pre-eminently a civil lawyer, his talents were versatile
and he appeared in numerous outstanding criminal cases of the day. His
argument on the question of corpus delicti and the evidence as to the disposal
of the dead body in the B. B. Singh case, in which an I. C. S. Officer was
charged with having committed the murder of a maid servant, though
repelled by the Courts in India, was ultimately accepted by the Prwy Council
(1946 P. C. 38). His vast learning had enabled him to rely upon the ratio
of two ancient and virtually obscure Irish decisions, which was endorsed
by the Privy Council and a finding of acquittal was recorded.
By his fearless and powerful advocacy Sir Tej Bahadur became the
doughty champion of all the forces of independence and defiance of arbi-
trary authority. He valiantly defended a veteran criminal lawyer of the
Allahabad High Court, viz. Shri Kapil Deo Malaviya when notice for the
offence of contempt of court was issued to him (see 1935 Allahabad Law
Journal Reports, p. 125), because he was the author of an article published
in the ‘Leader’ newspaper, edited by C. Y. Chintamani, in which he had
made the general aspersion “In this connection it is amusing to note that
when a comparatively undeserving lawyer is raised to the Bench, which is a
fairly frequent occurrence in our judicial history, it is generally
claimed etc.”
Another sensational case which he argued at the request of the leaders
of the Calcutta High Court Bar was the one in which Sri Tushar Kanti
Ghosh, the editor of the ‘Amrit Bazar Patrika’ had been hauled up for
contempt of court. [See 1935 Calcutta, 419 (D. B.)]. Yet another matter
which echoed throughout India was the ‘Search Light’ Contempt Case
in which in a fit of righteous indignation Sir Tej hurled at the Bench a remark
which has become classical, “My Lords, there is no such presumption in law
that a Judge knows law”.
His forensic style was sober, terse and matter-of-fact. He was not
eloquent in the popular sense. He lacked fire, but he was lucid and to the
418
point. He never would indulge in the advocate’s tricks. His advocacy
was sincere, upright and able. He never regarded ‘suppressio veri’ and
‘suggestio falsi ’ as legitimate methods of advocacy. He was a great believer
in the lofty traditions of the Bar, and no one has maintained a higher standard
of professional ethics.
The same rational attitude, free from rhetoric, characterised the style
of his speeches on the platform, outside the law courts. In this he differed
sharply from other public speakers of the day. He was a debater rather
than an orator, and was loath to sway the multitudes by emotional appeals.
There was the greatest contrast between the flamboyant oratory of such leaders
of Bengal as Bipin Chandra Pal and the clear cut, incisive, English speech
fastidiously accurate, of Tej Bahadur Sapru in a select gathering of intellectuals
at Allahabad.
Dr. Sapru made remarkable contribution by his work on the Imperial
Legislative Council during the latter part of the first Great War. After
returning from the Viceroy’s Council he did very valuable work on the
Reforms Committee. From 1929 t0 x 934 he undertook several journeys
to England to take part in the deliberations of the Round Table Conferences
and the Joint Parliamentary Committee. The Government of India Act
of 1935 was, as it were, his god-child, and it formed the nucleus of our
present Constitution. The climax of his legal career came in 1934 when he
was made Privy Councillor. In deference to his international reputation
as a jurist and lawyer the Oxford University conferred on him the degree of
Doctor of Civil Laws.
In political predilections he was a rigid constitutionalist, nurtured on
the writings of John Stuart Mill, Edmund Burke, Gladstone and Morley.
He belonged to the old school of Indian Liberals, who believed in the efficacy
of constitutional methods for making political progress. For several decades
he symbolised the golden mean in Indian politics. He was often a successful
mediator between warring groups and brought about the Gandhi-Irwin
419
pact. It is not often realised that he was a nationalist to the core, though
not of the type of the violent and blustering extremist nationalists of a later
generation. Posterity can never forget his indignant challenge to General
Smuts, who had refused to allow any citizenship to Indians domiciled in
South Africa. “We claim along with you”, declared Sapru, “equal citizenship
in the same Empire. We are not willing to be relegated from King George’s
dining hall to King George’s stables”. Seldom has the case for equal citizen-
ship been put with greater force than that.
Besides being an erudite lawyer and an astute statesman. Dr. Sapru
was a great gentleman. His conversation was full of anecdotes, which had a
touch of humorous exaggeration, but were utterly devoid of malice. He
loved to speak of the great ones of the land, of the lions of the law, of striking
things said and done in his time, but when he narrated them with evident
gusto, one half suspected that they were not nearly so Homeric as he made
them out. He had the income of a prince but he also gave and spent like a
prince, saving almost nothing.
He possessed a robust constitution and a phenomenal digestion. Doctors
had a puzzle in him, for he took absolutely no exercise, slept soundly, smoked
incessantly, and ate three square meals a day, could not do without meat
even once, and ‘loved chillies as few Andhras do’. Although of an ascetic
temperament in his attitude towards women, he was an Epicurean in diet
and loved rich and delicious food. After relinquishing his office as a Law
Member he brought with him a Goanese ccok and chef, and he also employed
Muslim cooks. Thus, there used to be three different varieties of food in
his kitchen — the Kashmiri, the Muslim and the European. He was a splendid
host and entertained sumptuously. He also dressed immaculately and went
in for the most expensive garments.
It is difficult to find a person of such wide culture, catholic taste and
urbanity. Apart from legal studies, he was vastly read in history, philo-
sophy, political science and literature. He was a great scholar of Urdu and
* 5 ^= 420
Persian, and Urdu poetry was one of his ‘pet affections’, to use that phrase
of Frederick Harrison. Under his patronage were held in Allahabad — and
alas ! they have since ceased— the most magnificent ‘Mushairas’ in which
the leading poets of the land participated and which have become land-
marks in the cultural history of the town. He wrote a most illuminating
preface to the poetry of Pt. Brij Narain ‘Chakbast’, which also revealed
his great insight into Urdu literature. It is perhaps not known to many
that he was chosen by the late Maulana Abul Kalam Azad as the only
person competent to contribute in chaste, felicitous and faultless Urdu a fore-
word to the collection of Essays written by the Maulana. There is a story
told of an amusing incident which happened in Hyderabad when Dr. Tej
Bahadur Sapru went to argue a case in which he was pitted against Mohd. Ali
Jinnah. There was an original document in Persian which had to
be deciphered and the counsel of the parties were requested to read it out
for the benefit of the court. Mr. Jinnah miserably failed and betrayed his
profound ignorance of Persian, whereas Mr. Sapru fluently read out the
entire document. This created a sensation and the next morning’s news-
papers commented in flaming headlines on ‘ Pandit Jinnah and Moulvi
Sapru’.
Sir Tej Bahadur Sapru breathed an atmosphere of opulence and
magnanimity. There was a grandeur about him, which seemed to scoff
at anything which savoured of pettiness or triviality. Such was the effect
of his dominating personality that when he entered the scene no one else
seemed to exist. His evening ‘darbars’ have become legendary, where the
‘elite’ of the town used to be present, exchanging repartees, delightful anecdotes,
choicest Urdu and Persian poetry and comments on current, political and
social topics. One finds in an immortal letter of the Rt. Hon’ble V. S.
Srinivasa Sastri a picturesque description of such ‘darbars’. Adverting to
Sir Tej Bahadur Sapru he wrote, “His evenings he enjoys most, lounging in
loose night apparel, imbibing tobacco in every form except as snuff, and
421 d££»
surrounded by cronies who lay it on, as Disraeli did to Victoria, with a
trowel”.
Sapru’s famous house, 19 Albert Koad, Allahabad— in whose glorious
contiguity the author of this article has the privilege to reside— became a
place of pilgrimage for all foreign visitors as well as celebrities of this country.
Round him gathered princes and plebeians, lawyers and judges, professors
and politicians, scientists and men of letters and a myriad satellites that circled
round and took warmth from that radiant luminary, until envious death
quenched his fire on the 20th January, 1949. He passed away after a full,
active and singularly versatile life. Where shall we see the like of him
again— such a virile and magnetic personality, of such moral grandeur and
integrity, so anxious to preserve the purity and prestige of the profession, so
“learned and lovable, the acme of honour and the pink of courtesy”.
422
1
Sir Charles Ross Alston
By
SRI BRIJ LAL GUPTA
Advocate and Ex-Judge, High Court, Allahabad
earliest recollection of Sir Charles is of a figure of pigmy stature,
thinly built, striding across the Marble Hall of the High Court,
smoking a cigar, with its thick end in the mouth. (He thought that by
lighting it at the thin end, and by throwing away the thick end after he had
finished smoking, he would imbibe less nicotine). He spotted a group of
gowns, and hurried to join it. Pulling one on either side of him by the
shoulder to bring them on a level with his own, he started telling them
quickly and confidentially, some humorous anecdote or naughty story
of which he had an inexhaustible fund. The while, his eyes twinkled
merrily and his face wore a mask of mock solemnity. Inevitably, his
audience burst into peals of laughter, and admired his informality and
friendliness. Then he strode away, as quickly as he had come, to some
court-room or the Bar Library. Subsequently, on numerous occasions,
423
I saw him do the same thing, both in the High Court as well as outside.
Naturally, he was very popular with everyone : junior or senior, European
or Indian, high or low.
His dimunitive stature gave currency to several stories, sometimes
made by himself at his own expense. The most well-known is when some
advocate told him humorously, “ you are so small, I could put you in my
pocket!” to which Sir Charles immediately retorted: “Then, you will have
more brains in your pocket than in your head”.
Another story, which emphasized his dimunitiveness was made by
him when the late Mr. Justice V. D. Bhargava joined the High Court Bar.
He was shorter in stature than even Sir Charles. On spotting the new-
comer, Sir Charles strode up to him, and grasping him by the arm, said in
mock serious tones :
“My dear fellow, you have broken my long record. Thank God
for sending you here, now I can also call myself tall.”
Yet another incident occurred when Sir Charles and his wife
took their child for admission to a school at Naini Tal. It may be stated that
Lady Alston was the daughter of Mr. E. Howard, another distinguished
Barrister of this Court. While the Mother Superior and Lady Alston stood
talking on the balcony of the school, the Mother Superior noticed the boyish
figure of Sir Charles, pacing the pavement below. Pointing to him, she
said :
“Madam ; if you are thinking of getting that one also admitted to
school, let me tell you it cannot be done. He is much too big for this
school.”
Lady Alston quietly told her :
Mother, he is Sir Charles, my husband, not my son.”
Sir Charles’ wit and humour, his stories and anecdotes, his felicity of
expression, his great gift of repartee made him very popular, and gave h im
an easy access to men’s hearts. Like Falstaff, he was not only humorous
424
in himself, but was also the cause of laughter in others, though not for the
same reason.
In a letter to his daughter Rukmini, the Rt. Hon’ble Sir Srinivasa
Sastri, who once travelled with Sir Charles on S. <S. Kaisar-i-Hind bound for
England wrote of a day with Sir Charles thus:
This one day with a Barrister of Allahabad, Ross Alston. He is a
wag. He enquired and I replied :
“You do not eat meat ?” “No.”
“You do not drink wine ?” “No.”
“You do not smoke ?” “No.”
“You do not bet ?” “No.”
“You do not play bridge ?” “No.”
“You do not dance ?” “No.”
“You do not join the sports ?” “No.”
“You do not flirt with pretty women ?” “No.”
“Then why the devil do you not throw yourself overboard ?”
With mock seriousness, Sir Srinivasa Sastri ended the letter to
his daughter saying :
“If I were young, I should have profited by this robust philosophy”.
As to his being characterized as a “wag”. Sir Charles might have
quoted to Sir Srinivasa Sastri the withering remark of Sir Toby Belch to
Malvolio in “ Twelfth Night” :
“ ’Cos thou art virtuous, shall there be no cakes and ale!”
Sir Charles’ informality and complete freedom from inhibitions, his
simplicity and friendliness and joy of living were due, perhaps, to his having
imbibed the laughter and sunshine and colour of the tropical Trinidad,
where he had spent his boyhood and adolescence. Though bora in Scot-
land, he went to Trinidad very early in life and remained there upto
the age of twelve years. Then he went to England for schooling and
remained there for seven years. He again returned to Trinidad and stayed
there until time came for him to go back to England for his legal studies.
After his call to the Bar from Gray’s Inn, when he was looking around
for a place to establish his legal practice, he came across Mr. George Jackson,
an eminent Barrister of Lucknow, who suggested to him that he should go
to India. After some time spent in Lucknow and gauging prospects there,
he was advised by Mr. Jackson to shift to Allahabad, where he was enrolled
as an Advocate in April, 1885, at the age of twenty-three, and practised
here up to the date of his death in January, 1937. It is a question whether
the decision to spend his life in India was due only to the advice of Mr. George
Jackson. It may very well be that the colour and sunshine of the tropical
Orient found an answering echo to the colour and the sunshine and laughter
of the tropical West Indies mixed in the Alchemy of his own mind and body.
Once having settled down at Allahabad he bent all his energies and
employed all his great gifts in the practice of the profession on the criminal
side. In less than a decade, he came to the forefront. It may be recalled that
in the history of the Allahabad Bar, the eighties of the last century were an
age of giants, Europeans and Indians, both on the criminal and the civil
sides. It was therefore no easy task for a new-comer to reach the top rung
of the professional ladder in such a short time. Having arrived there, he
maintained a prominent position in the forefront of the rank of practitioners
for more than forty years thereafter, until his death. During these years he
appeared for the Crown or for the defence in some of the most celebrated
trials throughout Northern India, and not merely in this State. Even in
his early days, he appeared in the State of Alwar in the trial of Major Ram
Chandra, which attracted considerable notice all over India, and firmly
established his reputation as a great criminal lawyer. On behalf of the
Crown he conducted the trial of the Ali Brothers : Maulanas Muhammad
Ali and Shaukat Ali at Karachi. He appeared in the Kakori dacoity case,
and in the Katarpur riot case and in many others j too numerous to be men-
tioned.
426
The outstanding characteristic of his advocacy was an absolute fear-
lessness combined with a power of expression, which rendered clear the
most intricate matters. His special genius was to find out important and
crucial points in the case, and not to waste time over minor matters or in
long and tedious arguments. His cross-examination of witnesses was bril-
liant. His rapier thrust, his logical faculty, the power and eloquence of
his advocacy combined with an absolute fairness in the presentation of his
cases, were an inspiration to juniors, and an intellectual treat to anyone
who watched his performance in court. His quickness, and the directness
of his approach very often proved the complete undoing of the Crown Pleader,
who in the fond belief of a long innings by Sir Charles, was, on the swift
conclusion of his short address, suddenly called upon to take the crease, and
did not know what to do.
Some stories of his anxiety not to waste time either his own or of the
court may be told. When at the end of a day, after Sir Charles’ arguments
in a case, his junior expressed the hope that the appeal would be allowed,
Sir Charles told him never to prejudge the issue, but to wait until judgment
was delivered. Next day when the court assembled. Sir Lai Gopal Mukerji,
one of the members of the Bench, who had read the record overnight,
enquired of him, why notice of enhancement should not be issued to
his clients, and expected that Sir Charles would naturally ask for the
usual fortnight’s time to answer the notice. But Sir Charles replied that
if his arguments of the previous day did not convince the Bench, they were
not likely to have that effect a fortnight later, and it was no use prolonging
the agony.
On another occasion, when an admission Judge, after perusal of judg-
ment, enquired of him, what was there in his revision, he answered shortly :
“Nothing”. Whereupon the Judge enquired why he had filed it, and Sir
Charles replied : “Because the client wanted your Lordship’s opinion and
not mine.” On yet another occasion after Sir Edward Bennet had perused
427
the judgment of the Sessions Judge and the Magistrate, he enquired of Sir
Charles what was the question of law involved in the revision : Sir Charles
replied : “It is writ large on the face of the two judgments. If you cannot
see it, I cannot make you.”
Munshi Ram Lai was his clerk. He was a very competent man
and Sir Charles had great respect for him. He used to prepare his notes
of arguments, and used to stand behind him in court. Once the Judge
enquired why he said that there were only six prosecution witnesses, while
the record showed that there were seven. Sir Charles turned to his clerk,
who replied loudly enough for the Judge to hear : "There were seven, but
one was disbelieved by the Sessions Judge.” Sir Charles told the judge :
"You see, my Lord, my Munshi can never be wrong.”
With his great gifts as an advocate and his outstanding position at the
Bar, he combined a singularly high standard of professional honour and
integrity, and no one through all the years of his long career at the Bar could
say that he deviated by a hair’s breadth from the rules of the strictest
professional propriety.
To the junior members of the Bar, European or Indian, Barrister or
Advocate, he was not merely kind but generous. He had a big heart and
he helped his juniors earn handsome fees, and was unstinting in their
praise. On the occasion of Sir Shah Mohammad Sulaiman’s elevation to the
Bench, he paid a most handsome tribute to him. Sir Shah Sulaiman’s great
learning and ability was pointedly brought out by him during his speech,
when he observed that those qualities were remarkable in one, whose age was
less than even the number of years that the speaker had put in at the Bar.
He was always helpful to the members of the Bar. Story is told of
Dr. N. P. Asthana, having a rough time in the admission of a Criminal
Revision. The holdall of Munshi Asharfi Lai, a legal practitioner of
Agra had fallen off a moving train. Munshi Asharfi Lai pulled the chain
and recovered his holdall, but was prosecuted and convicted for stopping
428
the train. Sir Charles happened to come into the eourt-room at the
psychological moment, when the guillotine was just about to fall on
Dr. Asthana's case. Sir Charles whispered to Dr. Asthana, but loud enough
for the Judge to hear, that when, in similar circumstances, Sir Henry
Richard had pulled the chain to recover his hat, there was not even a ‘hiss'.
This did the trick, and the revision was admitted.
In the days of colonialism and colour prejudice, Sir Charles was colour
blind. May be, this was due to his nurture in the Caribbean, the land of
Worrel andWeekes, Sobers and Kanhai, Walcott and Constantine, or may
be, it was due to the free masonry of the legal profession, which he had truly
imbibed.
This country has reason to be grateful to him for the removal of a most
humiliating blot on its Criminal Procedure. It provided for the trial of
European British Subjects by European Juries in the High Court, while
‘natives’ were triable by magistrates and subordinate judges. In 1922, when
the Rt. Hon’ble Sir Tej Bahadur Sapru was Law Member of the Viceroy’s
Executive Council, he sought the advice of Sir Charles Ross Alston
as an expert on Criminal Law and Procedure for removing this glaring
example of racial discrimination. Sir Charles not only advised his clients,
the European community to accept the necessary amendments in the Criminal
Procedure Code, but it was his advice and personal influence which made
it possible for the Government of India and the Indian Legislature to pass
the necessary legislation.
It was a just tribute to his distinguished position at the Bar, that in 1909,
he was elevated to the Bench and occupied his seat with distinction. He did not
like to continue on the Bench for long, as the lure of the profession was too
strong for him. Later on he was Knighted by His Majesty's Government.
He had an extremely genial personality. No other leader of the Bar
was more popular with the junior section. He had always something
very refreshing to say. Mr. B. E. O'Conor, his contemporary on the Civil
429
side said of him :
“He overflowed with humanity and was incapable of anything
even remotely suggesting pettiness or smallness. His acts of kindness
were innumerable, but they never saw the light of day. He preferred
to do good by stealth, and the good he did lived after him.”
It can truly be said of him that he was a great gentleman.
43O
Dr. Surendra Nath Sen : The Burke of
the Allahabad Bar
By
SRI GOPAL BEHARI
Advocate , High Court , Allahabad
a corner of the Court-room sat a little man absorbed in his
own thoughts waiting for the Court to assemble. I enquired
and found that he was Dr. Surendra Nath Sen. Slowly I proceed
towards him to pay my homage and the reply comes with a vigorous
n«d, “Thank you; How do you do ?” Although his is almost
the first case on the cause list and he has to open arguments, there
are no last-minute consultations with the junior counsel, no brush-
ing up of facts, no search for books. Dr. Sen sits calm and sedate.
When he starts the arguments, it appears as if a bottle of champagne
has opened up in the court-room. In sheer splendour of diction.
^ 431 ^
high forensic eloquence, torrential flow of words punctuated with
quotations from classical English writers and crispness of style, he
had scarcely an equal. When Dr. Sen spoke in a resonant voice
with a charm of its own, you could see the pomp and pageantry of
Elizabethan literature. His familiarity with English poets from
Chaucer to Tennyson was phenomenal and so also was his knowledge
of human affairs, with all the currents and cross-currents of
emotions and psychological reactions.
He belonged to a former rich family of Indigo Planters.
His father Babu Laxmi Narain Sen had a large Indigo plantation in
Ghazipur in the North-Western Provinces, now part of Uttar
Pradesh. He was born at Patna on 28th of August, 1871. At the
age of 13 he passed the Marticulation examination from the
Ghazipur Mission School in the First Division with distinction in
several subjects. He had a distinguished career at Canning College,
Lucknow, where he took his B. A. and M. A. degrees. In 1893 he
became an associate Professor of Philosophy and English Literature
in Victoria College, Gwalior and after serving there for several
years he resigned owing to ill-health and joined the Azamgarh
Bar. Later on he became the Government Pleader there. He
originally started practice at Fatehgarh where his brother, Mr. Upendra
Nath Sen was a Subordinate Judge. In 1903 he shifted to
Allahabad where he practised with great distinction till 20th
of June, 1927, when he was elevated to the Bench as an Additional
Judge of the High Court. He was awarded the Doctorate of Law
degree of the Allahabad University in 1914, the subject of his thesis
being ‘Hindu Jurisprudence’. One of his external examiners was
John D. Mayne, the celebrated authority on Hindu Law. Just before
his elevation he was appointed a member of a Special Committee
for the Revision of the Transfer of Property Act, on 25th of April,
432
i 9 2 7 > with Hon’ble Mr. S. R. Das as Chairman and Sir B. L. Mitter
and Sir D. F. Mulla as other members. The Committee finished its
work with remarkable speed. It assembled on 27th of April, 1927
and made its recommendations by the 15 th of June, 1927, when
Dr. Sen left Simla for Allahabad to join the Bench.
After a judicial career of nearly fo'ur-and-a-half years, he resumed
his practice at the Bar on the 30th of February, 1932. He revised
the second edition of Dr. Satish Chandra Banerji’s Law of Specific
Relief. He was appointed a member of the Judicial Committee of
Kashmir State and also of the State of Rewa. His two elder brothers
were also lawyers but they were more interested in Bengali poetry
than in law. His eldest brother Devendra Nath Sen practised law
at Jaunpur for some time and then shifted to Bengal. He is
considered to be one of the great poets of Bengali literature. The
other brother Babu Rajendra Nath was a lawyer at Azamgarh. He
was also a poet. He translated in English blank verse l Megh Nath
Baih Kavja’. Dr. Surendra Nath Sen himself was a poet and he
has to his credit some excellent collections of Bengali sonnets, such as,
‘Hindola,’ ‘Tushar,’ ‘Chinnar/ ‘Baikali’ and ‘Nidagh’. He was married
at Hazaribagh to Sarojani Devi, daughter of an Engineer, Mr. G. N.
Sen. She died in 1938. After her death Dr. Sen’s health began to
fail and he left his mortal frame on 8th of January, 1950.
The Advocates’ Association in its condolence resolution
expressed its grief in these words :
“In the death of Dr. Sen the Bar has lost one of its
highlights who maintained its best traditions and enhanced
its reputation. He was well-known for his eloquence,
literary gifts and mastery of facts and law.” -
Dr. Narain Prasad Asthana speaking on behalf of the Advocates’
Association before the assembly of all the judges and members of
the Bar remarked that “Dr. Sen was a member of the Bar for the last
45 years and his literary attainments and mastery of facts were appre-
ciated and deservedly recognised not only in this Court but throughout
the province His courtesy and politeness, his general assistance to
juniors, his sympathetic and helpful attitude towards all had greatly
endeared him to the members of the Advocates’ Association.” Mr.
R. N. Gurtu (later Mr. Justice Gurtu) speaking on that occasion
on behalf of the Bar Library remarked that for well over 30 years
the Courts had resounded with his eloquence and that when he
addressed the court it was apparent that he had mastered every
detail of his case that he had penetrated into the bottom of the
problem and the judges knew that nothing remained to be said.
Pt. KanhaiyaLal Misra, Advocate-General cf U. P., then Additional
Government Advocate, referring to the first occasion when he saw
Dr. Sen speaking at the close of Pt. Misra’s University career, said
that he was completely overwhelmed by the avalanche of words that
fell from his lips. Mr. B. Malik who presided over the obituary
reference as the Chief Justice of the Court and who was his junior
for over four years observed as follows :
“When I joined the Bar of this Court he was at the height
of practice. Once out of curiosity I checked up the number
of First Appeals in which he appeared and I found that he had
been briefed in as many as 75 per cent of the cases. Soon
after I joined the High Court Bar he took me under his wing,
and I cannot sufficiently describe the help and assistance that
I got from him during four years that I worked as his junior.
When at the height of his practice he gave it up, and accepted
the judgeship. His judgments specially on questions of
Hindu Law would bear testimony to his vast learning and
his knowledge of case-law. He knew and could quote from
434
memory every important case, and one thing that impressed
me most, was his quickness of grasp and his capacity to argue
cases from notes prepared by others after a brief consultation.
He was kindness personified. His politeness was proverbial,
and he was loved and respected by all those who came in
contact with him.”
Almost every Saturday evening there gathered at his house
the intellectuals of the City of Allahabad where the burning topics
of the day were informally discussed. The late Pt. Jawahar Lai
Nehru was a frequent visitor to the Saturday Club and its ’Presi-
dent Dr. Sen lavishly entertained the visitors. Apart from Mr.
B. Malik, his juniors were the late Mr. Uma Shanker Bajpai, who
later rose to be a Judge of this Court, a born master of English
prose, the great Mr. Pyare Lai Banerji, the accomplished Advocate
of all-India stature, Mr. Narbadeshwar Upadhya, a Sanskrit scholar,
Mr. R. C. Ghatak who is happily still in active practice and Mr.
Ajodhya Nath, who could silently bear any amount of professional
load and who later worked as junior to Sir Tej Bahadur Sapru.
Dr. Sen left surviving him three sons : Sudhir Nath Sen
of General Motors, who unfortunately died in 1965, Robin Sen,
an Advocate of this Court who years back won a trophy in All-India
Wrestling Match and his third son Munindra Nath Sen who is
an Assistant Librarian in the Public Library, Allahabad.
His familiar expressions were, ‘as clear as the pike staff ; the
adder hisses where the sweet birds sing ; roses have thorns while
silver fountains mud ; as innocent as the dove ; carried his heart
upon his sleeve for any dog to play cat with.’ It is difficult to
recall all the twists and turns of his expressions but one thing
is undeniable, viz. the literary flourishes did not affect his absolute
fidelity to the facts on record or his unrivalled mastery of the
law. However, dull the case, however, intricate the facts, the
presence of Dr. Sen electrified and enlightened the whole atmosphere,
and when he addressed the Court, judicial interest could never flag.
Such then was the career of one of the stalwarts of the profession
who was almost invariably pitted against Pt. Moti Lai Nehru,
Sir Tej Bahadur Sapru and Mr. O’Conor, legendary figures of the
Bar of this Court.
Mr. Pearey Lai Banerji
By
SRI KEDAR NATH SINHA,
Senior Advocate, Supreme Court and High Court , Allahabad
|P|3|HE Allahabad High Court is noted in the country for having
produced great Judges and lawyers. John Edge, Mahmud,
Theodore Piggot, A. T. Harries, P. C. Banerji, Sulaiman and
Niamatullah among the Judges and Moti Lai, Sunder Lai, Ram Prasad,
Jogendra Nath Chaudhury, Satish Chandra Banerji, Tej Bahadur
Sapru, O’Conor, Charles Ross Alston, Surendra Nath Sen and Pearey
Lai Banerji among the lawyers (I have scrupulously left out living
giants), to name only some of them, are names in the legal world of
which any country could be proud. We here cherish their memory
with respect, admiration and even awe.
I propose writing about Mr. Pearey Lai Banerji with whom
I came into contact which was close and which subsisted for about
22 years till the last breath of Mr. Banerji’s life. I had the privilege
of appearing with and against him in a number of cases and in my
younger days for me it was a passion to follow him from court to
court, when I was free, and hear the master arguing his cases with
consummate ability and skill.
437
Mr. Banerji was born on 24th July, 1B83 at Allahabad and died
here on 22nd March, 1952. His father Mr. Dwarka Nath Banerji
too was a distinguished lawyer and professor of law in the University
of Allahabad.
Mr. Banerji started practice in the High Court in 1907 and was
appointed Advocate General of U. P. in 1947. His rise in the profes-
sion was steady and gradual and not phenomenal and therefore certain
and stable. He rose to the top of the profession and to dizzy heights
of forensic lore not by miracles nor through anybody’s favour but
by har d and studious work. Law, as is well-known, is a jealous
mistress requiring constant wooing and law was Banerji’s passion.
His devotion to the goddess of law was single-minded and
unique. In fact he had no other temple where he could burn the
incense.
He was an unrivalled exponent of law and it was an intellectual
treat to hear him marshalling his facts and unravelling the intricacies
of the law involved in his cases. He held facts sacred and allowed
no deviation. He had the unique advantage of possessing an un-
ruffled temper and even the interruptions and fascinating repartees of
his dear friend and formidable rival Dr. Kailas Nath Katju, who is
happily still with us, did not disturb him and he went on with his
argument until he had his full say in persuading the Judges to
appreciate his point of view. Needless to say, the Judges listened to him
with great attention and consideration. His advocacy was persuasive,
sweet and forceful. His command over the English language was
superb and it was an equally fascinating intellectual treat to hear his
dialogue. Where more than ordinary emphasis was needed or where
the Judge wrongly persisted, like the waves in the ocean, his sentences,
couched in the most elegant language, came forth with a dash and
thunder in quick succession and produced the desired effect.
438 *££*>
His contribution to rhe enunciation of law at the bar is
enshrined in the law reports of about 30 years during which period he
appeared in almost every case of importance and he was equally at
home in Criminal, Civil and Revenue law and latterly he had mastered
the complicated Avadh Taluqdari Law, so much so that his services
were constantly in requisition at Lucknow. In his later years his
reputation had travelled beyond his own State and he had come to be
recognised as an All-India leader of the profession, an Advocate of
great skill whose enunciation of the legal principles was exquisite,
illuminating and forceful. His style was at once elegant, chaste and
captivating.
To glean a few of the cases in which his extraordinary ability
as a lawyer contributed to the laying down of the law on the point
by this High Court, the following may be found interesting and
useful :
1. In Rameshwar Prasad’s case reported in 1950 A. L. J. 719,
Rameshwar Prasad vs. Ram Chandra over- ruling Dwarka Halwai’s case
reported in 1940 A. L. J., p. 166, the High Court held that the decree
obtained against a minor where his guardian, properly appointed,
acted with gross negligence is voidable and not void.
2. In Nand Ram’s case reported in 1947 A. L. J. 34 the High
Court made an important pronouncement while discussing the scope
of an application under section 5 61- A, Criminal Procedure Code and
held “ the High Court is reluctant to interfere with the
ordinary course of law and substitute its own judgment for the
judgment of the Magistrate who is trying the case before the
completion of the trial. But where the facts are so preposterous that
the High Court feels satisfied on the admitted facts that there is no
case against the accused and a further prolongation of the prosecution
would amount to harassment and abuse of the process of the
Court ; it is the duiy of the High Court to interfere under section
561-A of the Criminal Procedure Code and put an end to this abuse.”
3. In Debi Prasad vs. Emperor (1947 A. L. J. 52) a full
bench of 5 Judges considered Rule 119 of the Defence of India Rules
and the applicability to it of section 114 of the Evidence Act.
4. In Mohammad Azam Khan’s case reported in A. I. R., 1947
Allahabad 137 it was held that where the waqf was made in the name
of God and was created in perpetuity and a portion of the usufruct
of the waqf property had been reserved for pious and charitable pur-
poses it would follow that the waqf intended by implication to
reserve the ultimate benefit for charity.
Reference, however, to such cases will not be complete without
mentioning two very important cases argued by Mr. Banerji,
namely—
(1) the famous contempt of court case against Mr. P. R. Das
in which Mr. Banerji was at the height of his extraordinary
forensic abilities, and (2) the U. P. Zamindari Abolition Act case
which is a landmark in the history of land legislation.
. We do not admire Pearey Lai Banerji only for his erudition and
learning, his skill and advocacy but for his broad human sympathies.
He was a good friend and helped the juniors and the needy. He was
a man of few words but firm in his conviction. In his otherwise
reserved 'and seemingly stern frame was encased a warm and soft heart.
His personality was great and massive. He had a fine sense of
humour and many do not know that in his free moments of which,
however, he had very few, he enjoyed jokes. One trait of his charac-
ter was that he would start a joke and make people around him
laugh yet even a smile would not escape his own lips.
His sense of punctuality was remarkable. The most lucrative
case could not detain him in the office beyond his usual hour of 8
44 °
or 8 ’30 in the night. When after the day’s toil of almost unattain-
able intellectual occuption of the highest degree, he left his office
and after an hour’s rest and recreation, during which he even used
to fondle small children and play with them, he sat down to dinner
and used to go to bed only after reading some English literature
which was his relaxation. I remember an incident which marks
out his sense of punctuality. I was instructing him in a com-
plicated case when the time for his leaving the office arrived.
I was in the midst of explaining the point of law involved in the
matter. He pleasantly but firmly interrupted me saying “All that
you say is quite true, but look at the clock.” I instantly obeyed
and found that it was 8 p. m. We rose for the day and continued
discussion the following evening.
I close this tribute by quoting a few sentences of his life-long
friend Dr. Kailas Nath Katju, another doyen of the Allahabad Bar.
No tribute could be greater and no language more forceful :
“To him (Mr. Banerji) a new legal proposition is a thing of
joy and beauty for ever and the way he examines it is like that of a
jeweller looking at the flashing rays of a many coloured diamond. He
explores every aspect of it just as an explorer explores every nook
and corner of a newly discovered island. He traces the growth and
development of a legal theory and principle like a scientist expound-
ing the development of a far-reaching and world shaking scientific
discovery. His law books, particularly his English law reports,
those myriads of precedents, are the holy of holies not to be profaned
by the touch of idle curiosity but to be opened and read and
inwardly digested in the spirit of a devotee reading the sacred script-
ures. . . .”
Such, I think, is the correct attitude of all devotees of law.
An epoch making career like Mr. Banerji's should inspire and elevate us.
‘A Case of Constitutional Conflict
Between
The State Legislative Assembly and the High Court’
Supremacy of the Constitution Vindicated
By
MR. JUSTICE MIRZA HAMEEDULLAH BEG
i. How the Problem arose
pH||HE fundamental principles on which orderly and civilized
Government rests, broadly covered by the term “Rule of
Law”, are laid down for us in our Constitution. The Con-
stitution assigns to the Judiciary the function of authoritatively
and finally interpreting the Constitution and of expounding its
meaning. In 1964, however, the U. P. Legislative Assembly put
forward a claim to determine for itself the ambit of its constitutional
443 £*££
power to punish citizens for its contempts. This claim seems to have
been advanced upon the footing that such power to interpret the
Constitution on such a matter was itself a privilege conferred upon
the Assembly by the Constitution. It sought to enforce this claim by
ordering the production, by way of punishment, of two Judges of
the Allahabad High Court in custody because they had entertained the
Habeas Corpus petition of a citizen, Keshav Singh, and had passed an
interim order of release of the petitioner on bail after the petitioner
had been arrested on a warrant issued by the Speaker of the Assembly
and sent to gaol for its contempt. The petitioner’s complaint to the
High Court was that the Legislative Assembly had stepped beyond
the limits of its constitutional power to punish its contempts. He
alleged that he had done nothing which could be construed as its
contempt. No doubt, the petitioner had concealed a number of very
material facts initially, and, after the whole set of facts had been
revealed, the High Court itself held that Keshav Singh had been
quite properly punished, his petition was dismissed, and he was sent
back to prison to serve the remaining part of his short sentence.
But, the unfortunate series of events which resulted from the filing
of the Habeas Corpus petition of Keshav Singh necessitated a refer-
ence of several questions of grave constitutional importance by the
President to the Supreme Court of India. And, these questions had
to be answered by the Supreme Court before Keshav Singh's case
could be finally decided by the High Court. The basic difficulty
in the case was caused by the following words in Article 194(3)
of the Constitution :
“ the powers, privileges, and immunities of a
House of the Legislature of a State, and of the members and
the committees of a House of such Legislature, shall be such as
may from time to time be defined by the Legislature by law.
444
and, until so defined, shall be those of the House of Commons
of the Parliament of the United Kingdom and of its members
and committees, at the commencement of this Constitution.”
2. Certain Inherent Difficulties
The answers given by the Supreme Court of India to the ques-
tions sent to it by the President disclosed the difficulties which were
the inevitable results of trying to import and fit the flexible, elusive,
changing, and so characteristically and peculiarly British contents of
Constitutional Law as the “Powers, Privileges, and Immunities” of
the House of Commons into the logical scheme of a necessarily rigid
Federal structure of our Constitution. The fluidity of the unwritten
British Constitution puzzled the trained logical mind of the French-
man de Tocqueville so much that he declared in desperation : ‘ ‘The
English Constitution has no real existence” (see Dicey, “Law of
Constitution,” ioth Edition, page 22). Perhaps no branch of
British Constitutional Law is so thorny and apparently so lacking in
logic as the law relating to the “Powers, Privileges, and Immunities”
of the House of Commons. The logic behind its development and
its contents at any given time cannot be perceived or understood
divorced from British Constitutional history. This is a basic truth
which the Supreme Court brought out ; and, it then explained the
underlying historical reasons.
Just as it is not possible for even the legally omnipotent
British Parliament to change certain physical facts, so also it was
not legally possible to transplant here without some transmutation
certain incidents and appendages of legal power, position, and mutual
relations of the House of Commons and the King’s Courts which
depend upon the peculiarities of British Constitutional history. The
445 ^
British historical background, possibly resulting in certain attitudes
or conventions or understandings which are not, strictly speaking, in
the realm of legally enforcible or established rules at all, cannot be
engrafted on the body of our written Constitution by mere impli-
cation. The qualifying word ‘possibly’ is used here because the
precise result, at any given time, of the historical process which has
shaped and determined the character and contents of every part of
the largely conventional British Constitution cannot be given with
complete certainty. The exact result at any particular time (the
relevant time for us is 1950) must remain a matter of controversy as
the divergence of views between the majority and minority opinions
of their Lordships of the Supreme Court on this matter itself shows.
Consequently, the majority of their Lordships of the Supreme Court
preferred to base their opinions on the clear meanings of the express
words of the Constitutional provisions as a whole, about which there
was no uncertainty, rather than to accept the vague alleged implica-
tions of Article 194 (3) of the Constitution. But, both the majori-
ty and the minority judgments, after extracting the threads which
could be extricated from the tangled skein of British Constitutional
history, have tried to weave them into the very different texture and
pattern of our written Federal Constitution to the extent to which it
was possible to do so. This was done because it was the apparent
intention of our Constitution, as revealed by its Article 194 (3), that
this should be done until more suitable provision could be made by
appropriate legislation.
3. Constitutional Duty and Function
of the Judicial Organ
In this country, when a House of Legislature exercises a quasi-
judicial function in punishing its alleged contempts, the duty of
446
determining whether a House of Legislature has or has not overstepped
the bounds of its legal authority in doing so is certainly vested in
the judicial organs of the State ; and, the Judiciary has to perform
its duty when properly called upon to do so. Even in England, the
courts have successfully asserted their power to decide jurisdic-
tional questions of this nature and determine the existence and
scope of alleged privileges of the House of Commons. This exercise
of such judicial power by the King’s Courts has been acquiesced
in by the legally sovereign Parliament which could have easily passed
a law denying such powers to the courts ; but, the British Parliament
has not chosen to do so.
As there has been no legislation in this country also so far,
defining “the powers, privileges, and immunities” of a House of the
Legislature of State, the only method legally left open by our
Constitution for obtaining, in cases of dispute, determinations of
basically important questions relating to the existence, content, and
scope of any privilege, power, or immunity of a House of Legis-
lature is that of adjudication by courts, Of course, every authority
or organ of State, whether Executive, Legislative, or Judicial, has
the right and duty of determining the ambit of its own powers or
jurisdiction for its own satisfaction so that it does not exceed the
limits of its legal authority in exercising it, but, when a citizen
complains of an actual “ excess of power ” or “ misuse of power ”
for a collateral purpose (a “detournement de pouvoir” as the French
lawyers call it) or “ abuse of power” on the part of any authority
or organ of State, however exalted, as a citizen is permitted to do
under a civilized democratic Constitution, who is to decide the
questions which may arise ? According to elementary principles of
justice, the authority alleged to have perpetrated a wrong could not
be made the Judge, or, much worse, the sole and exclusive judge of
447
its own cause in a case in which the citizen’s grievance is against that
authority itself. If decisions of an authority, however exalted and
responsible, could not be questioned at all anywhere, even if grossly
beyond the reasonable scope of its powers, it would constitute a
standing invitation to that authority to exceed its powers.
4. The Basis of the Claim of the Assembly
was “Lex Parliamenti”
Counsel for various State Assemblies who appeared before the
Supreme Court seemed to base their claims on a theory that “ Lex
Parliamenti ” constituted a separate system of law and of rules with
which the Judiciary had no concern. Even the rule that courts do
not look behind the General Warrant issued by the Speaker, laid
down in the case of Sherrif of Middlesex (1840), appears to have been
attributed to “Lex Parliamenti” by the counsel for the Assemblies,
although a presumption of propriety and legality of a General
Warrant, when such a Warrant was produced before a court, could
only be an optional and not absolute rule of evidence for the courts
themselves to observe. If that rule was part of some “Lex Parlia-
menti” with which the courts had nothing to do, the courts could
not, strictly speaking, be required to observe or enforce it at all.
Moreover, in the case of Sherrif of Middlesex (1840) itself, it had
been declared by Coleridge, J., that the “presumption” employed by
the English Courts was not to be confounded with any “privilege”
of the House of Commons. The presumption could not arise if the
Speaker’s warrant disclosed a palpably unsustainable ground of im-
prisonment. This distinction made by English Courts clearly meant
that they could and did entertain, examine, and investigate a petitioner’s
grievance upon a Habeas Corpus petition directed against imprison-
448 ,-^e
ment under the Speaker's warrant as Mr. Justice Sarkar, holding the
minority view in our Supreme Court, also indicated.
The theory that Lex Parliamenti was a separate system of law
altogether, unknown to the King’s Courts, was put forward for the
last time in England in the case of Stockdale v. Hansard (1839) in
the first half of the nineteenth century, and shattered beyond repair
by the judgment of that case. By that time, the Constitution of
England had assumed a very definite democratic pattern. Many of
the theories advanced, claims made, and doctrines propounded before
the English Constitution was fully formed and stabilized, lost their
relevance and validity in a changed context. It was declared that,
under the Constitution as it stood in the nineteenth century England,
the House of Commons could certainly not make any law by a mere
resolution; and, its resolution could not have the force of a judg-
ment of a court of law binding upon the King’s courts. After this
decision, given in Stockdale v. Hansard (1839), it would have been
logical for the King’s courts to have discarded the assumption on
which the presumption attaching to the General Warrant of the
Speaker was based. Nevertheless, soon afterwards, in the case of
SherrifF of Middlesex (1840), an English Court, perhaps inconsistently,
fell back upon the apparently obsolete basis of a Constitution which
was no longer in existence. But, it did so upon the peculiar facts
before it. It is, however, not necessary that an English Court should
have adhered to this presumption on the grounds given there if such
a question had arisen in 1950 in a different context. Mr. Justice
Sarkar, who held the slightly divergent minority opinion of one
against six in the Supreme Court, observed : “I do not think that
the House of Commons was itself ever a Court.” If this was the
position, the basis on which the presumption of legality and propriety
of the Speaker’s General Warrant rested— that it could be equated
*»
449
with a Warrant of a Superior Court-was shaky even in England.
5. Erskine May’s Exposition
The authority cited frequently by both sides to the controversy
was that of Sir T. Erskine May who, in his treatise on “Parliamentary
Practice”, dealing with the “Misconceptions as to the Nature and
Authority of Parliamentary Law and Privilege”, pointed out, under
the heading of “Confusion of Legislative and Judicial Jurisdiction of
Parliament”, that the Judges’ opinion in Thorpe’s case, 1452,
confirmed by Coke’s dictum, according to which the ordinary law
courts could not judge of matters belonging to Lex Parliamenti, on
the ground that the High Court of Parliament “hath no higher” was
out of date even in the seventeenth century. He proceeded to
observe as follows about the views of Coke and Balckstone :
“The views belonged to a time when the distinction
between the judicial and legislative functions of Parliament
was undrawn or only beginning to be drawn and when the
separation of the Lords from the Commons was much less
complete than it was in the seventeenth century. Views
about the High Court of Parliament and its powers which
were becoming antiquated in the time of Coke, continued
to be repeated far into the eighteenth century, although after
the Restoration Principles began to be laid down which were more
in accord with the facts of the modern Constitution. But much
confusion remained which was not dismissed by the use of the
phrase “ privileges of Parliament
Sir Erskine May went on to indicate the three notions resulting
from this “confusion of thought” in the course of English Constitu-
tional history. He wrote :
“Three notions arise from this confusion of thought :
(i) That the courts, being inferior to the High Court
of Parliament, cannot call in question, the decision of
either House on a matter of privilege.
(a) That the lex et conseutudo parliamenti is a separate
law, and, therefore, unknown to the Courts.
(3) That a Resolution of either House declaratory
of privilege is a judicial precedent binding on the courts."
It is surprising that even after what Sir T. Erskine May
had attributed to confusions of thought, which had apparently
been cleared up by the time that Sir Erskine May brought out
his famous treatise in 1844, these very notions should have been
put forward by the counsel for the State Assemblies as the law
applicable in this country under our written Constitution where
there ought to be no place for confusion.
6. Misconceptions Removed
During the course of a bitter struggle for power between
the King and the Commons in Seventeenth Century England, utterly
novel claims were made on behalf of the House of Commons to
combat the pretensions of Stuart Kings to rule by Divine Right. In
this period, Charles the First was tried and executed. Even after the
Restoration of Monarchy, but soon after the revolution of 1688,
when James II was driven from England, two of the King’s J udges,
one of whom was believed to be a Royalist, were called to the Bar of
the House and punished (See Jay v. Topham , 12 State Tr., 822).
But, these episodes in English history have been regarded by British
constitutional lawyers and Judges as examples of gross and unconsti-
tutional excesses and of clear abuse and usurpation of powers during
a passing phase. The British Parliament itself proclaimed, at the
Restoration, that all that had taken place during the “Interregnum”
was to be blotted out of the annals of British Constitutional
history. British Judges had declared that the punishment of two of
the King's Judges stood on no better footing. What were thus
proclaimed and declared to be breaches of the British Constitution
could not possibly furnish any legally existing basis at all for even a
claim by the House of Commons to possess or exercise such powers
in 1950. The British Constitution was placed on a new and stable
foundation by the Act of Settlement, 1701, and then the position of
the judiciary became firm and secured. No repetition of unconsti-
tutional acts of the kind indicated above could be thought of
in England after that. Lord Denman, in Stockdale v. Hansard (1839),
referring to the above mentioned punishment of the two Judges, said :
“Our respect and gratitude to the Convention Parliament
ought not to blind us to the fact that this sentence of
imprisonment was as unjust and tyrannical as any of those acts
of arbitrary power for which they deprived King James of
his Crown.”
Misconceptions which could result from citing and representing
instances of gross and flagrant violations of the Constitution in
England, during a past era of severe conflict, as examples of
what was legally permissible there, could only be removed by a cool
examination and dispassionate consideration of the whole position,
after considerable study and research, such as the one which took
place during the reference in the Supreme Court.
7. Modern Concept of Parlimentary
Privilege Clarified
The concept of a privilege of the House of Commons has
itself undergone a change in the course of British Constitutional
History. The origin of the concept of a “privilege”, as a grant by
the King to the representatives of his people, is borne out by
the customary “humble petition” by the Speaker to the King
and a repetition of the grant afresh at the commencement of
each Parliament even today in England. Sir Erskine May has,
dealing with this origin, observed :
“What originated in the special protection of the King
began to be claimed by the Commons as customary rights, and
some of these claims in the course of repeated efforts to
assert them hardened into legally recognised privileges.”
During the struggle between the King and the Commons,
these privileges were used as means of defence by the House of
Commons against the encroachments attempted by the King upon
the rights of the representatives of the people. The King’s Courts,
presided over by Common Lawyers, upheld claims to these privileges
against the King, and, thereby converted them into legally recognised
and enforcable rights. Later, when they were sought to be abused
and utilised at times as weapons of attack against the rights of
subjects, the British Parliament stepped in, and, by means of
Parliamentary Privileges Acts of 1737 and 1770, restricted and
checked misuse of claims to “privilege” by members of Parliament
who could not obtain, it was clarified, immunity from legal
proceedings under the “pretence” of privilege. Thus, the British
Parliament has itself tried to confine claims to privilege to their
proper sphere and purpose.
Our Supreme Court, after considering the whole history
of Parliamentary Privilege in England, thus stated the concept
which emerged finally in the nineteenth century when an equilibrium
was reached and the limits of privilege were “prescribed and
accepted by Parliament, the Crown, and the Courts” :
“The distinctive mark of a privilege is its ancillary character.
The privileges of Parliament are rights which are ‘absolutely
necessary for the due execution of its powers’. They are
enjoyed by individual Members because the House cannot
perform its function without unimpeded use of the services
of its members; and by each House for the protection
of its Members and the vindication of its own authority and
dignity.”
It may be observed that English Judges, who have never lagged
behind in protecting fundamental rights and freedoms of subjects,
even though these are not enumerated in a written Constitution like
ours, had also rejected long ago the concept of any Parliamentary
privileges enjoyed “against the rights of the people under the laws of
the land”. One is reminded here of the remark of Sir C. K. Allen,
in a foreword to a book by Mrs, Seighart entitled Government by
Decree” : “In saying that ‘no liberty is secure without a court to
uphold it’ Mrs. Seighart utters a simple truth which is confirmed by
a thousand years of English history.”
8. The Result : See : Special Reference No. i of 1964
(A. I. R. 1965 S. C. p. 745).
The Supreme Court of India, following the law under the
British Constitution which, in this respect, differs from the American
Constitution and law, upheld the claim of the Houses of State
Legislature to punish strangers for contempts committed outside the
Houses of Legislature, subject to the ultimate supervisory jurisdiction
of the High Courts and the Supreme Court. It made it clear that
Judges of the - High Court not only enjoy protection against the
discussion of their conduct as Judges in Houses of the State Legislature
by reason of the specific provisions of Article 211 of the Constitution,
but also immunity from proceedings by a House for any alleged
contempt by merely performing a judicial function in exercise of their
duties. The opinion given to the President was :
“The existence of a fearless and independent judiciary can
be said to be the very basic foundation of the Constitutional
structure in India, and so, it would be idle, we think, to
contend that the absolute prohibition prescribed by Article 21 1
should be read as merely directory and should be allowed to be
reduced to a meaningless declaration by permitting the House
to take action against a Judge in respect of his conduct in the
discharge of bis duties.”
9. Supremacy of the Constitution
The supremacy of the Constitution, interpreted finally by the
courts, is one of the ways in which harmonious working of the
Constitution is secured, and the so-called “dualism”, which must give
rise to constitutional conflict, is avoided. Whatever may be the
position under the British Constitution in 1950, there is no room for
contending that such “daulism” exists under our written Constitution.
Any attempt to introduce the discarded dualism into our Constitution
will add to confusion and provide a breeding ground of friction
between the different organs of the State. The so-called dualism also
implies absence of remedy for the citizen, even if he is imprisoned
for having done something which could not possibly constitute a
contempt of a House of Legislature, whenever the Speaker of a House
issues a general warrant and thus precludes the courts from scrutinising
the grounds upon which imprisonment was ordered.
On the basic question of the supremacy of our Constitution
one may point out the following observations of our Supreme Court :
455
“In dealing with, this question, it is necessary to bear in
mind one fundamental feature of a Federal Constitution. In
England, Parliament is sovereign ; and in the words of Dicey,
the three distinguishing features of the principle of Parliamentary
sovereignty are that Parliament has the right to make or
unmake any law whatever; that no person or body is recognised
by the law of England as having a right to override or set aside
the legislation of Parliament, and that the right or power of
Parliament extends to every part of the Queen’s dominions
(The Law of the Constitution by A. V. Dicey, p. xxxiv).
On the other hand, the essential characteristic of federalism is
‘the distribution of limited executive, legislative, and judicial
authority among bodies which are coordinate with and
independent of each other’. The supremacy of the Constitution
is fundamental to the existence of a federal State in order to
prevent either the Legislature of the federal unit or those of
the member States from destroying or impairing that delicate
balance of power which satisfies the particular requirements of
States which are desirous of union, but not prepared to merge
their individuality in a unity. This supremacy of the
Constitution is protected by the authority of an independent
judicial body to act as the interpreter of a scheme of distribution
of powers. Nor is any change possible in the Constitution by
the ordinary process of federal or State Legislation (The Law of
the Constitution by A. V. Dicey, p. Lxxvii). Thus, the
dominant characteristic of the British Constitution cannot be
claimed by a Federal Constitution like ours.”
It also observed :
“In a democratic country governed by a written Constitution,
it is the Constitution which is supreme and sovereign. It is
456
no doubt true that the Constitution itself can be amended by
the Parliament, but that is possible because Art. 368 of the
Constitution itself makes a provision in that behalf, and the
amendment of the Constitution can be validly made only by
following the procedure prescribed by the said Article. That
shows that even when the Parliament purports to amend the
Constitution, it has to comply with the relevant mandate of
the Constitution itself. Legislators, Ministers, and Judges all
take oaths of allegiance to the Constitution, for it is by the
relevant provisions of the Constitution that they derive their
authority and jurisdiction and it is to the provisions of the
Constitution that they owe allegiance. Therefore, there can
be no doubt that the sovereignty which can be claimed by the
Parliament in England, cannot be claimed by any Legislature
in India in the literal absolute sense.”
10. A Summary
The Constitutional position of our High Courts, in the context
of constitutional supremacy and with special reference to the power
of Houses of State Legislatures to punish their alleged contempts,
emerging after the historic opinion of the Supreme Court, may
be briefly summarised, as follows :
(i) Political sovereignty of the whole people of India was
converted into legal sovereignty of a democratic Republic by
the Constitution of India.
(ii) The Constitution of India may be spoken of as an
embodiment of what political philosophers have called the
“Permanent” or “Real” Will of the whole people. The
Constitution is legally Supreme.
457
(iii) The following consequences flow from the supremacy of
the Constitution :
(a) The subordination of all the organs of State to the
Rule of Law contained in the Constitution. No person or
authority or organ of State can claim to be above the law or
to flout the law contained in it. They are all equally
subjected to it.
(b) The legality of the acts of every person or .authority
in the State can be tested with reference to the Paramount or
Fundamental law contained in the Constitution.
(c) Hence, in such a Constitution, at given moments, as
Prof. Willis observes about the American Constitution, the
supremacy of the judicial organ becomes manifest when it
expounds and becomes the mouth-piece of the Fundamental
or Paramount Law with reference to which the competence
and legality of all the actions of other organs is determined.
This is, however, a supremacy in the judicial field only.
(iv) Even though there is no clear cut separation of powers
in our Constitution, there is a division, enumeration, and
specification of all the essential powers of each organ, whether
Executive, Legislative, or Judicial, in the Constitution. In
any case, unspecified and merely implied or assumed powers
cannot override specified powers.
(v) The power of judicial supervision, so that no organ
oversteps its orbit of authority or power, is necessarily a
judicial function under the Constitution. The duty of
determining the frontiers of all kinds of authority— Executive,
Legislative, Judicial — is vested in the judicial organs.
(vi) The safeguarding of fundamental rights is especially
entrusted to the judicial organs which are given special powers
and special obligations are cast upon them for this purpose
under Articles 32 and 226 of the Constitution; and, an
unconstitutional invasion of these rights by a House of a State
Legislature, in purported exercise of power to punish contempts,
is open to challenge before Courts.
(vii) The power of supervision over all courts and Tribunals
in a State is also specifically conferred upon the High Court
of that State under Article 227 of the Constitution.
(viii) As punishment for contempt even when awarded by a
State Legislature is a quasi-judicial function, its orbit and due
exercise are necessarily placed under the supervision of the
judicial organ the aid of which may be invoked by an aggrieved
person.
(ix) No orbit is invaded or exceeded when a power is legally
and justly and properly exercised by any authority.
(x) The object of the judicial function is not to destroy but
to safeguard and fortify the frontiers of each orbit and to affirm,
reinforce, and support all just and correct exercise of powers
within each orbit.
(xi) The orbit of Parliamentary Privilege and powers, under
Article 194(3) of the Constitution of India, can only be one
which can be fitted into a Constitution with other well defined
and expressly specified orbits of power and authority. It
cannot possibly contain within it any special conventional rule
governing the relationship of the House of Commons with the
King’s Courts under a bygone British Constitutional set up
which had a “King in Parliament” and the “King’s Courts”.
Such rules cannot exist within a Constitution where there is
neither a King nor the King’s Courts, but a federal structure
of Government ensuring judicial supremacy in the sense
pointed out above. In other words, the orbit indicated by
the words “shall be those of the House of Commons 5 ', in
Article 194(3) of the Constitution, is restricted to those
powers and privileges which can reasonably co-exist with
express provisions of the Constitution.
(xii) The High Court of a State is an instrument of the
Paramount Authority to ensure the Supremacy of the Constitu-
tion, and the existence of its express power of supervision, over
the quasi-judicial sphere, including that of the U. P. Legislative
Assembly’s quasi- judicial action in punishing its contempts,
cannot be denied under the Constitution as it exists,
(xiii) The exercise of its constitutional power by the High
Court can be challenged by an appeal to the Supreme Court
of India but in no other manner.
(xiv) The limitation of the power of High Courts to
interference in cases where jurisdictional errors may be
committed by Houses of the Legislature in punishing con-
tempts is consistent with our Constitution, but the elimination
of this power of supervision would erect fortresses of
absolutism which would be inconsistent with the letter, the
tenor, the spirit, and the express objects of our Constitution.
11. Ultimate Guardians of the Constitution
While the Supreme Court and the High Courts in India
staunchly uphold the Supremacy of the Constitution, with judicial
independence as its logical corollary, its preservation ultimately
depends upon the wisdom, the understanding, the will, and the vigil-
ance of citizens who have made the Constitution what it is and who
can also change it. If the legal supremacy of the Constitution is to
serve the grand and noble objects set out in the Preamble to our
Constitution, it must be backed by a reverence by the citizens for the
Law— described as the “King of Kings” by our jurists— and for the
function and position of those who are constitutionally charged with
the duty of expounding its meaning. Genuine respect for these can
only spring from an understanding of the true purposes of the Law
which expresses our notions of Right and Wrong, Just and Unjust.
European jurists have used various terms (Jus, Droit, Dritto, Recht)
to signify what is included also in our view of the Law as “Dharma”
or a binding force akin to religion. Our ancient concept of the Law,
however, goes beyond what these terms stand for. It embraces that
principle of “Virtue”, as Montesquieu called it in his “Espirit des
lois”, which distinguishes a healthy democracy from other forms of
government. The late Prime Minister Nehru, one of the great
thinkers of the modern age, once said :
“You may define democracy in a hundred ways, but surely
one of its definitions is self-discipline of the community.
The less the imposed discipline and the more the self-discip-
line the higher the development of democracy.”
This discipline consists of correct habits of thought and action
illumined by an adequate understanding of the Law and its opera-
tions. So long as these are not sufficiently developed and firmly
established, the principles upon which Constitutional Supremacy
rests will not be out of danger. The moral prestige, and, indeed, the
very existence of our Democratic Republic is bound up with these
principles which must be properly understood and defended by
ordinary citizens for whose welfare and protection they are designed.
ooQQ^^OOoo
<=^=, 46l
Procedural Law in Smritis
By
SRI HARISH CHANDRA PATI TRIPATHI
Judge , High Court of Judicature at Allahabad
basic principles of Truth, Reason and Justice which provide
SlEH foundation for the social order are immutable. They have
been and shall be the same in all ages and in all climes. In
Vedic Samhitas (ioooo to 5000 B.C.) which in the words of Prof.
Maxmueller represent “bablings of humanity” Rishis have sung panegy-
rics to the glory of “Ritam” or “Satyam”. The first and foremost
injunction to the disciples leaving the portals of ancient Gurukulas
on the eve of their entering the social order was “Never to deviate
from the path of truth—'
The immanence of truth was affirmed by the Smritis which
declare “ Observance of truth is the highest code of
conduct.” “Truth though absolute has many facets—^ fsraT
say the Upanishads. “Truth is subtle —' vtct
I t needs a discerning eye to discover it. In Mahabharat when
463 ^
questioned by Yudhishthir as to what is truth, what is untruth and
when should a person tell the truth Bhishma says,
grrotSTOarot to to: 55^1
STTOTg rTWT5T 5TOSTOT II
“The question you have put to me is a difficult one because it is
difficult to say what is righteousness or truth. It is not easy to
describe it.” (Mahabharat, Chapter 105, S. 9). He goes on
3TTO SIS *T SETO* froit TO I
at% gpNf to* unroll
*7 qqq I
“To tell the truth is righteous. There is nothing higher than
truth. But where falsehood prevails as truth, truth should not be
said there. There, again where truth passes for falsehood, even
falsehood should be said.” (Mahabharat Shanti Parva, Chapter 109,
S. 9, 4 and 5).
“Law” says Aristotle, “is either universal or special. Special law
consists of the written enactments by which men are governed.
The Universal law consists of those unwritten rules which are
recognised among all men.” Law, however, in common parlance,
can be described as a set of rules framed by the society in its best
wisdom to regulate the conduct of its members inter se and qua the
society itself. The primary purpose of Law is to assist in sifting
truth from falsehood, to serve the cause of justice and to uphold the
social order based on justice. srsTT:”—
- Law provides a recognised channel for the enforcement of
the rules of morality recognised by public opinion in any community.
The recognition of fixed rules compendiously known as Law
helps in the administration of justice as it provides a safeguard
against individual aberrations, The necessity of conforming to
464
publically declared principles protects the administration of justice
to a large extent from the disturbing influence of improper motives.
Law is no respector of persons. It has, therefore, to be certain and
uniform. “To seek to be wiser than the laws” says Aristotle, “is
the very thing which is by good laws forbidden,” For the enforce-
ment of legal principles in the dispensation of justice uniformity
and certainty is desirable not only in the application of those
principles but also in the procedure for their application. And
there lies the importance of procedure and fixed rules of evidence
which help the court in unravelling the complexities of truth and in
applying the principles of substantive law in the adjudication of
issues.
In the ancient literature of “Smritis" which came into existence
at the dawn of human civilisation (some time between rooo and
500 B.C.) we find an elaborate code of civil and criminal procedure
and detailed rules of evidence. Some of these provisions bear
striking resemblance with the corresponding rules in modem laws-
of evidence and procedure, It is not possible in this brief article
to give an exhaustive summary of those rules. But a few of them
by way of illustration are quoted below from the Institutes of
Manu (Dr, Ganganath Jha Edition) the most ancient and authorita-
tive amongst the “Smritis " .
Constitution of the Court
MS#*: 1
wnfo qam 11 (Chapter VIII, S. 10)
“The Judge shall enter the august court with a dignified
demeanour accompanied by three learned men capable of giving good
counsel and having occupied the chair of justice investigate the suits.”
465
Compare this provision -with the modern concept of open courts
and jury trial.
Commencement of trial
(Chapter VII, s. 23)
“ Having occupied the chair of justice with his body well attired
and mind composed he shall salute the guardian deity (chair of
justice) and then proceed with the trial,”
Mark the importance assigned to judicial robe and preservation
of judicial equilibrium.
General rules regarding judicial procedure
SI9PW ^ 'sncJTH^ Stiffs 1
^ ^ TWt fe*T<T: U
^sri TOczr *j*t**t ^3: q^i
spfer t^ll (Shlokas 44—45)
“ When engaged in judicial proceedings the Judge shall keep his
eye upon the truth, upon the object, upon himself, the witnesses and
upon the place, the time and aspect. Just as a hunter discovers the
footprints of a deer by the drops of blood, so should the Judge
discover the truth by means of inference,” In other words the Judge
will sit with an open mind concentrating his discerning eyes on the
issue before him, its surrounding circumstances and evidence and
shall arrive at the truth by logical inferences flowing from the direct
and circumstantial evidence.
Evidence (Who is a competent witness)
*rrcrr: 3% ^ftt: ^3 sufftjj: |
snf f^tSjgSsrT: qR^II
466
SwrfwRtalHT * 5T^T?TI ^ tfap I
muz ?r ?r ?fei: u
“In all civil suits trustworthy men, irrespective of castes, fully
conversant with morality and free from avarice should be made
witnesses. Interested persons, relatives and helpers of the suitor,
persons of proved corruption, a minor, one who is intoxicated or
demented or tormented by some powerful feeling of love or rage,
one who has renounced the world and the Judge shall not be
called as witnesses. However, in the event of proper witnesses
not forthcoming evidence may be given by a minor and an
interested person in the suitor. In the case of anything done in the
interior of a house or in a forest or in the case of injury to the
body— any person who may be cognizant of the facts may give evi-
dence on behalf cf the parties to the suit.” (Chapter VIII, S. 63
to 69).
^ ^ ^ 1
7 tw 11 S. 72
“In criminal cases of violence, theft, adultery, assault etc., the
character of the witnesses shall not be investigated.”
Compare this provision with section 54 of the Evidence Act.
Evidence to be direct
rT5f mv wfsrbsrr ^ Item 11 S. 74
“The person who happens to see or hear anything relevant to a
case he should speak out exactly as to what he has seen or heard.”
Evidence to be relevant
^ iljSStfaprwf I
srflW ^ S. 78
467
“What the witnesses state naturally in relation to the question in
issue alone should be accepted. Apart from that what they state
from consideration of righteousness, etc, is useless.”
Examination of witnesses
mhw- sTTHTitfsr W£ stfW I
nr®' ftWtsgjsffa frfWta II -S. 79
“After administering oath the Judge shall question the witnesses
present in court in the presence of the plaintiff and the defendant
gently asking them to declare freely and truly whatever they know
about the subject-matter of the suit.”
Assessment of evidence
fwiter ii— s. 25, 26
“He shall discover the internal disposition of the witnesses by
external signs ; by variations in their voice, colour aspect, gait and
gestures and also by looking into their eyes because the inner mind
is indicated by such variations.”
It is a detailed instruction for the Judge to derive conclusions
from the demeanour of the witnesses.
Ex-parte order
“A defendant in a civil suit who does not appear without valid
reasons for three fortnights to answer the claim shall be saddled with
an ex-parte decree with proportionate costs.
468
Where there is no oral or documentary evidence the case can be
decided by giving ‘Shapath’ to the parties.” (S> 107 and 109).
Decision
f *; to ; *dfkri 1
snflrapT 41
“The Judge knowing his duty shall determine the law for each
suitor after examining the provincial laws, the laws of the guilds and
families.” In other words in order to apply the correct law in decid-
ing the “lis” the Judge shall take into account the provincial laws,
laws of guilds and the families.
Criminal trial— Punishment
'TKfrc ^ 1
^^53 Traill— S. 126
“After having ascertained the motive of the crime, the time and
place when and where it has been committed and having taken into
consideration the condition of the accused and the nature of the
offence the Judge shall inflict punishment on the guilty.”
All the relevant considerations which should weigh with a Judge
dispensing justice in a criminal charge are succinctly mentioned in
this couplet.
grfrf 3 *rcr: t^ii-s. 129
“First of all he shall inflict punishment in the form of a repri-
mand, then in the form of a reproach and thirdly in the form of a
fine, and lastly a corporeal punishment.” In the context signifies
corporeal punishment and not necessarily capital punishment. This
469
shows that corporeal punishment was to be inflicted as a last measure
only when the warning, reproach and fine were not considered ade-
quate to meet the ends of justice. It is difficult to find a more
humane system of dealing with the delinquents.
Manu enumerates causes forming basis of legal proceedings under
1 8 heads covering a wide range of issues relating to property, debts,
contract, sale of goods, partition, partnership, disputes between
master and the servant, landlord and the tenant, disputes regarding
boundaries and criminal charges of assault, theft, violence, adultery,
gambling and betting.
Narad and Brihaspati who flourished several centuries after Manu
have expanded this list and have given a fuller description of legal
procedure. Narad enumerates seven faults of a plaint and Brihaspati
deals with the technique of drafting of a plaint and written state-
ment and serving of interrogatories on the opposite parties. Brihas-
pati recognises the importance of ‘Yuktf— reasonable logic in the
application of the legal principles to the facts of a case. He says that
“the decision of a case on the basis of unadulterated scriptural law
divorced from reasonable logic results in causing damage to the law
itself”.
SrTSPTTfaw ST firRttjq’: I
*pth;tr: srsn^ll
It is not within the scope of this article to give a detailed
account of the legal procedure and rules of evidence enunciated in
the various “ Smritis ” (Yagyabalka, Narad, Yashishtha etc.). A few
illustrations have been given above only to show that the ancient
Hindu law givers were fully conscious of the importance, of the
fundamentals of legal procedure and evidence in the administration
of justice.
470
The Moral of our Judicial Pronouncements
By
MR. MUSHTAQ AHMAD
Ex-Judge y High Court of Judicature at Allahabad
P[Fj|HE vast period of a century of judicial history of our High
Court, illuminated by successive judges of great talents and
calibre, have tended to evolve a policy reminiscent of their
outlook in dispensing justice between man and man. The dawn of
political freedom, achieved in 1947, provided a test of the strength
and soundness of that policy and also an occasion to judge whether the
doctrine of pure natural justice that had held its sway for over three
quarters of a century needed any change in its basic foundations
or applied in an equal degree to the altered conditions as well.
The policy and standard, pursued by our High Court before
the advent of independence, derived their sanction from the highest
471 *£&
ideals of judicial morality which the human conscience could
approbate. With the advent of independence a new panorama
was opened which promised a wider scope for our instincts in the
judicial as well as the political and social spheres. The dominant
urge then was to enhance and enrich the international prestige of our
country for its cult of broad-minded justice as the foundation
of its judiciary. No doubt, the judicial structure to be erected
in our new-born State for the administration of its laws could
be taken as the index of our sense of uprightness and public justice.
It was to be a mirror reflecting the honour and applause which
the country was destined to earn in the councils of the world.
I would every moment be moved by this larger consideration
and strive to advance our prestige to achieve the highest peak of
judicial perfection and dignity.
Fortunately, there was no difficulty in the wake of our achieve-
ment of political freedom in following the standard that had governed
our legal role for three quarters of a century before. A review of
that standard would, in effect, be a review of the rule and policy
adopted in our Courts in the post -independence period also.
That, then, is the standard and policy which have permeated
through our judicial administration with surprising uniformity
and have remained unaffected by events and forces tending to
shake its functional lubricity. It is a synthetic concept born of a
highly cultured outlook of generations of judges who have revealed
an astounding consistency of faith and conviction in the mastery of
the role of human conscience in solving human affairs.
The Judge’s outlook, to which I have just referred, is fore-
shadowed in the brief phraseology of the oath he has to take on
ascending the Bench. The terms of that oath are simple and
explicit “shall perform my duties to the best of my knowledge,
472 *££*
ability and judgment.” On the assumption that, before a person is
appointed to the Bench, his knowledge, ability and judgment have
already been tested and found to conform to a certain - standard,
he is required to declare that he would make the best use of them
in discharging his work. The very fact of his appointment is
a testimony to his being equipped with those qualities, and any
suggestion or assertion that he has not acted well is understandable
only on the hypothesis that he failed to make a judicious use
of them.
It is essential to visualise the real implications of the terms of
a judge’s oath in the abstract, as also of his promise to act to
the best of them, when he has sat on the Bench. They must
be conceived both in their individual and also in their collective
sense, The word ‘knowledge’ would refer to the entire information
which the declarant has of things generally and of the facts and
law relevant to the cause before him. The term ‘ability’ would
refer to the judge’s capacity and efficiency, varying with each man’s
educational and cultural attainments, and the last word ‘judgment’
to the ultimate result of the relative functioning of the first
two qualities involving a co-ordination of ideas into a logical
product. Collectively the phrase would imply a state of perfection
achieved by a balanced working of the physical, mental and moral
powers of the individual and calculated to adapt him to the
technique of a judicial career.
It is in the judge’s oath in the above terms that the
real symbol of his faith is enclaved. It is there- that his
moral self comes to play in harmony with his mental make-up. - It
is there that a ground is furnished both to the outside world as also
to that ethereal Power and Light, the conscience in him, to pro-
nounce whether he has behaved well or otherwise. His conduct
473
becomes primarily a matter between him and his Maker and is only
afterwards a matter between him and any one else.
But once you make it a matter for the sanction of your
conscience, which is another name for the sanction of the Supreme
Being, give Him any name you like, and you have no escape from
that, you bring yourself in sight of a vast ethological panorama,
before which you stand almost in chains and secluded ruthlessly
from all alien thoughts and where you simply reveal in your passion
for the search of truth. Of that truth there are no variations and
no adjustments, except in so far as they may be influenced by varia-
tions in the degree of different persons’ training, culture and
experience and their resultant outlooks. The conflict in judicial
orders on the same or similar materials has its origin not in any
conceivable changes in the essence of that truth but only in the
diversity of intellectual equipments which different judges possess.
Such conflicts have no worries for the judge who proceeds on
his work in complete allegiance to the sovereignty of his
oath.
Such a task may seem to be fettered by imaginary handicaps,
and it is there that a judge’s courage is put on its trial. He would
of course be anxious to pass the right judgment, but, not unnaturally,
he may also wish that judgment to be welcome to both the parties,
without his swerving in the least from the proper track. But
the matter before him may be such or the parties before him may
be so conservative about the justness of their claims that it may
never be feasible to please them both. With rare exceptions, I found
the parties before me equally earnest and assertive, and I failed,
as I had to fail, to please both of them. I, however, felt that I had
done my part, if I did not provoke such comments as ‘hasty’,
impatient , discourteous or ‘obstinate’, although it was too much
474
to hope being applauded by the losing party, whatever was the
reaction of the losing counsel.
But where there is a clash between two ideas, one of acting
to the best of one’s knowledge, ability and judgment and the other
of satisfying both the parties and their helpers— a practical impossi-
bility there is no question before a Judge of making a choice. His
faith, his creed and his mission leave him no option, and he turns
blindfolded to the only unalterable course open to him of acting
to the best of his knowledge, ability and judgment. He then
completely detaches himself from his surroundings and resigns
himself to that infallible source of wisdom for the judgment and
decree that he has to pass. He is wholly indifferent to the opinion
of the gallery or the consequences that may follow and has indeed the
complacence of obeying the dictates of his conscience alone. He
knows these to be inevitable, but he also knows that such reactions
only demonstrate the dignity and the sacredness of the promise he
made on the first day of his work.
This then is the sublime task, a determined scorn of fear
of the entire surrounding and a concentrated appeal to that unheard
voice, through which the Almighty Being conveys His message to
His human agent as the most natural culmination of the faculties
with which He has endowed him. The Judge is inspired to speak
out his thoughts in grim detachment from all artificial calculations.
His mind works in the open, not behind a screen. He is fearless
in his words and explicit in his orders. He has neither the time
nor the mind to care for the reactions to his bearing or to his work,
and his creed drives him into one appointed channel, leaving him
helpless to think elsewise.
There can be only one moral, proclaimed by the verdicts
of a Judge moved by the above ideals. As the only source of your
‘ 475
becomes primarily a matter between him and his Maker and is only
afterwards a matter between him and any one else.
But once you make it a matter for the sanction of your
conscience, which is another name for the sanction of the Supreme
Being, give Him any name you like, and you have no escape from
that, you bring yourself in sight of a vast ethological panorama,
before which you stand almost in chains and secluded ruthlessly
from all alien thoughts and where you simply reveal in your passion
for the search of truth. Of that truth there are no variations and
no adjustments, except in so far as they may be influenced by varia-
tions in the degree of different persons’ training, culture and
experience and their resultant outlooks. The conflict in judicial
orders on the same or similar materials has its origin not in any
conceivable changes in the essence of that truth but only in the
diversity of intellectual equipments which different judges possess.
Such conflicts have no worries for the judge who proceeds on
his work in complete allegiance to the sovereignty of his
oath.
Such a task may seem to be fettered by imaginary handicaps,
and it is there that a judge’s courage is put on its trial. He would
of course be anxious to pass the right judgment, but, not unnaturally,
he may also wish that judgment to be welcome to both the parties,
without his swerving in the least from the proper track. But
the matter before him may be such or the parties before him may
be so conservative about the justness of their claims that it may
never be feasible to please them both. With rare exceptions, I found
the parties before me equally earnest and assertive, and I failed,
as I had to fail, to please both of them. I, however, felt that I had
done my part, if I did not provoke such comments as ‘hasty’,
‘impatient’, ‘discoutteous’ or ‘obstinate’, although it was too much
to hope being applauded by the losing party, whatever was the
reaction of the losing counsel.
But where there is a clash between two ideas, one of acting
to the best of one’s knowledge, ability and judgment and the other
of satisfying both the parties and their helpers— a practical impossi-
bility there is no question before a Judge of making a choice. His
faith, his creed and his mission leave him no option, and he turns
blindfolded to the only unalterable course open to him of acting
to the best of his knowledge, ability and judgment. He then
completely detaches himself from his surroundings and resigns
himself to that infallible source of wisdom for the judgment and
decree that he has to pass. He is wholly indifferent to the opinion
of the gallery or the consequences that may follow and has indeed the
complacence of obeying the dictates of his conscience alone. He
knows these to be inevitable, but he also knows that such reactions
only demonstrate the dignity and the sacredness of the promise he
made on the first day of his work.
This then is the sublime task, a determined scorn of fear
of the entire surrounding and a concentrated appeal to that unheard
voice, through which the Almighty Being conveys His message to
His human agent as the most natural culmination of the faculties
with which He has endowed him. The Judge is inspired to speak
out his thoughts in grim detachment from all artificial calculations.
His mind works in the open, not behind a screen. He is fearless
in his words and explicit in his orders. He has neither the time
nor the mind to care for the reactions to his bearing or to his work,
and his creed drives him into one appointed channel, leaving him
helpless to think else wise.
There can be only one moral, proclaimed by the verdicts
of a Judge moved by the above ideals. As the only source of your
light and guidance for dispensing justice in human disputes you have
to know of no other authority except that of your own conscience,
directing you to choose the form, the scope and the magnitude
of your orders and reject fearlessly all other factors likely to influence
your mind. All such fears that may arise from your rigid adop-
tion of this rule must be discounted in contempt, and your sole
objective must be the approbation of your own instinctive impulse
and your sole satisfaction must be the endorsement of your conduct
by that God-granted apparatus which you carry in yourself as an
unflinching beacon-light throughout your life in this world.
Origin and Nature of Courts
By
SRI H. P. DUBEY
Advocate f High Court. Allahabad
frW'SBHAT is a ‘Court’ ? COURT (Curia ) » formerly signified the
King’s palaceor mansion, a place where he remained with
his ordinary retinue and often sat in person to transact the judicial
business of his kingdom. The style of the Court in England in the
eleventh and twelfth centuries was curia regis, aula regia, aula regis,
or coram ipso rege, as it was also movable with the King’s Household.
The ‘Court’ thus gradually came to be associated with the place where,
or the authority by which, justice was administered ; and now, it is
more especially the place wherein justice is judicially administered
The ‘Court’ is an assembly, of Judges or other persons legally ap-
pointed and acting as a tribunal to hear and determine any cause, civile
criminal, ecclesiastical, military or naval . 1 * 3 The judge alone is.
1 Curia (Lat .) :cour (Fr.): koert (Dutch): gericht (Get.).
3 Blackstone’s Commentaries, Vol. Ill, p. 34.
3 Shorter Oxford English Dictionary, Vol. I, p. 410.
however, “not the whole Court. He is only a component though
important part of the wider concept which constitutes a ‘Court’.
The individuality of the Presiding Officer is essentially different from
the impersonal entity of a Court .” 1 This is the reason why jurisdic-
tion, territorial, or with reference to subject-matter, is conferred, by
law, on court and not on judge.
Courts are created by the authority of the Sovereign as the
fountain of justice. This authority is usually exercised by the Cons-
titution of a country or by Statute, Act, Charter, Letters Patent, or
Order-in-Council. An Act of Parliament or other Legislature is
necessary to create a Court . 2 3 A Court, in the strict sense, is a tri-
bunal which is a part of the ordinary hierarchy of tribunals
established and maintained by a State by or under its Constitution to
exercise its judicial power. The Courts perform all the judicial
functions of the State, except those that are excluded by law
from their jurisdiction.*
A ‘Court’ is distinguished from a mere advisory or a fact-finding
body, in that it has the power to pronounce a binding judgment and
to adjudicate upon the rights and liabilities. It also differs from
many Tribunals which have a judicial or quasi-judicial character. The
following characteristics distinguish a ‘Court’ from analogous bodies:
(i) A Court must exercise jurisdiction over persons by
reason of the sanction of law, and not merely by the voluntary
submission to its jurisdiction, e. g., arbitration.
(ii) It must be, expressly or impliedly, Recognised by law as
a Court. The mere judicial manner of the exercise of
1 1966 A.W.R. 197 (soi), per Gyanendra Kumar, J. (All. H, C.).
2 See Halsbury's Laws of England ; Simond’s III-Ed., Vol. 9, p. 344*
3 A.LR. 1961 S.C. 1669 (168 1), Hidayatulla, J,
478 ^
funotions is not enough. Thus, the statutory bodies exer-
cising quasi- judicial functions are not Courts.
(iii) A Court must generally be open to the public.' The
publicity of judicial proceedings is regarded as a guarantee of
public security that justice will be properly administered , 1 2 3
and promotes confidence of the public in the impartial adminis-
tration of justice.
There are also the following essential characteristics of Courts;
though these may be necessary adjuncts of other judicial or quasi-
judicial bodies :
(i) A Court must be impartial and free from bias and
prejudice; and its Presiding Officer should ‘regulate the pro-
ceedings of the Court and maintain its decorum’ ‘in consonance
with the prestige of the Court and not in an angry, abusive and
ignoble form, which may undermine the very foundation on
which exists the edifice of the administration of justice.’*
(ii) A Court must be independent of and immune from out-
side influence . 4 * * * *
1 Scott v. Scott, 1913 A.C. 427.
2 McPherson v . McPherson, 1936 A.C. 177 (P.C.).
3 1966 A.W.R. 197, per Gyanendra Kumar, J. (All. H. C.).
4 According to Shastras i a Judge should keep in subjection to himself his
lust, anger, avarice, folly, drunkenness and pride ; neither he should be seduced by
the pleasures of the chess, nor be addicted to play, nor be always engaged in dancing,
singing, and playing on musical instruments, nor he must sleep in daytime, nor practise
the drinking of wine, nor he should take, nor long for, the property of another, nor
should envy another person's superior merit, nor criticise and abuse any person.
Providence created the Judge, who must not be considered a mere man, but be
looked upon as ' Dewata 9 in a human form. Providence also created punishment;
and if the judge inflicts k according to Shastras, the subjects become obedient to
law ; if he omits to do so, the Kingdom and property become ruined. (See Hal-
bed’s Code of Gentoo Laws, (1776-ed., Lond.), pp. 1/53-53, 5 °)
(iii) A Court must not enter into questions of social
ideology or party politics . 1
(iv) In most countries, a Court is generally bound by its
own precedents and invariably by the precedents of superior
courts. The scale of justice must be kept “even and steady,
and not liable to waiver with every new judge’s opinion .” 2
(v) The power to punish for contempt of itself belongs
only to a Court . 3 4
Ordinarily, certain courts have a special status by being
recognized as Courts of Record. A Court of Kecord originally
meant one whose acts and proceedings were enrolled in parchment.
‘Record is a writing in Parchment, wherein are enrolled Pleas of
Land or Common Pleas, Deeds, or Criminal Proceedings in any
Court of Record.’ In other words, the proceedings of a Court
of Record, preserved in its archives, are called records, and are
conclusive evidence of that which is recorded therein.
A Court of Record is in recent days, a Court whose acts
and proceedings are enrolled for a perpetual memorial and testi-
mony. These records are of such high authority that their truth
cannot be called in question ; 5 6 though the Court of Record
itself may amend the clerical slips and errors. This is a
privilege they share in common with a supreme legislature. The
accuracy of the records of either cannot be challenged by any other
authority.
1 A.I.R. 1951 All. 357 (F.B.), per Sapru,J.
2 Blackstone’s Commentnries , Vol. I, p. 69.
8 A.I.R. 1956 S.C. 66, Bhagwati,J.
4 Termes de la Ley , s. v. Record.
5 Blackstone’s Commentaries, Vol. Ill, p. 55*
6 Stephen’s Commentaries , Vol. Ill, p. 5.
480
All superior Courts in India are considered Courts of Record.
The High Courts, Courts of Judicial Commissioners and the Supreme
Court are recognized as Courts of Record by the Constitution
itself . 1 The Courts of Record in England are divided into
Superior and Inferior Courts of Record; the latter so called because
their proceedings are subject to the supervision of the High Court of
Justice, exercised by means of writs of mandamus, certiorari and
prohibition . 2
Certain Courts are expressly declared by Statutes to be Courts
of Record. In case of a Court not expressly declared to be so, it
will be deemed to be a Court of Record, if it is empowered by
Statutes or otherwise to fine or imprison for contempt of itself . 3 4
Generally speaking, there must be, in every Court, at least
three constituent parts : the actor (or plaintiff, who complains of an
injury done), the reus (or defendant, who is called upon to answer
the action), and the judex (or judge to examine and ascertain the
truth and facts)/
In general, • all matters, both Civil and Criminal, must be
heard in open Court; but, in certain exceptional cases, the Court
may sit in camera , either throughout the whole or part of the hear-
ing, as for instance—
(a) where it is necessary for the public safety, or
( b ) where the subject-matter of dispute would otherwise
be destroyed, for example, by the disclosure of a secret
process or of a secret document, or
1 Arts. 2x5, 129.
2 Odgers : Common Law of England, X Ed. (1911), Vol. II, p. 1,020.
3 Halsbury’s Laws of England : Simond’s III-Ed., Vol. 9, p. 347.
4 Blackstone’s Commentaries, III, p. 26.
(V) w here the Court is of opinion that witnesses are hindered
in, or prevented from, giving evidence by the presence of
the public , 1 * 3 or
(</) where Courts are enjoined by Statute to exclude the
public in particular proceedings, such as in matrimonial
matters, or
(<?) where the presence of the public would make the
administration of justice impracticable, e.g., where a child is
testifying as ‘to indecent offences’, and in guardianship and
lunacy proceedings where the judges are supposed to act not
strictly as Courts but as representing the Sovereign as parens
patriae?
All tribunals are not Courts, though all Courts are tribunals.
By ‘Courts’ is meant Courts of judicature and by ‘Tribunals’, those
bodies of men who are appointed to decide controversies arising
under certain special laws. The word ‘Courts’ is used to designate
those tribunals which are set up in an organized State for the
administration of justice. By administration of justice is meant
the exercise of judicial power of the State to maintain and uphold
rights and to punish wrongs . 8 There are tribunals with many of
the trappings of a Court, which, nevertheless, are not Courts in the
strict sense of exercising judicial power . 4 A Judicial Officer, for
instance, of a Court, acting as an Arbitrator appointed by the State
Government under a Special or Local law, though he has some of
the trappings of the Court, is really not a ‘Court’ in the true sense
of the word, inasmuch as, under that law, he is not constituted
1 Halsbury’s Laws of England, Simond’s III-ed., Vol. 9, pp. 344-45.
3 Scott v. Scott, (1913) A. C. 417.
3 A.I.R. 1961 S.C. 1669 (1680), Hidayatullah, J.
4 1931 A.C. *75 (*96).
482
a permanent tribunal for the administration of justice and his
pronouncement is not of a decisive and binding nature . 1 Accord-
ing to Lord Stamp, the real distinction between the Courts and the
tribunals is that the former have ‘an air of detachment ’. 2
The power and authority to reach a conclusion, the necessity
of the application of a judicial, that is an impartial, mind to the
process of reaching a conclusion is a necessary adjunct even of
executive and administrative functions. In fact, in all the depart-
ments of human activity, the necessity of distinguishing between
the relevant and the irrelevant is ever present. But, when the
judicial process combines itself with the power to decide on indi-
vidual and social rights and obligations, and that power is clothed
with the special status of being the Sovereign’s representative for
the dispensation of justice, a ‘Court’ is born and established.
Of late, a large number of administrative and domestic
tribunals have sprung up all over the world. They too decide
disputes between the parties but they cannot be termed as Courts;
though many of them may be called quasi-judicial tribunals since
they decide the controversies after hearing the parties and their
evidence.
In countries, where administrative law is recognized as a
separate branch, distinct from and independent of the ordinary law of
the land, there is a dual system of courts for the administration of
justice. Administrative Law in France ( droit administratif) is that
portion of French law, whether enacted and codified or built up
upon court decisions, which, according to Dicey, determines [a) the
position and liabilities of all State officials, (b) the civil rights and
1 1966 A.L.J. 460 (470), per Gyanendra Kumar, J. (All. H. C.).
s A.I.R. 1961 S.C. 1669 (1680).
liabilities of private individuals in their dealings with the officials
as representatives of the State, and (c) the procedure by which these
rights and liabilities are enforced. Many of the countries of the
world, it is true, have got their own system of administrative
law; but, unlike France, Italy and Germany, the English-speaking
countries, e.g. Great Britain, Canada, the United States, and even
India, where judiciary is patterned upon the English judicial system,
neither treat the administrative law as a separate body of law nor
have a separate system of administrative Courts, to which alone, as
in France and Italy, the public officials may be subjected for the
exercise of arbitrary governmental action or for their abuses and
illegal administrative conduct. In France, such cases are handled
only by special tribunals, known as tribunaux administratif (Adminis-
trative Courts), with the Cornell d’ Etat (Council of State) at their
head, and not by tribunaux judiciaires (Ordinary Courts) under the
Cour de Cassation (Court of Cassation), which is the highest court
of appeal in France for ordinary cases, civil and criminal. The
Administrative Courts in that country belong to a quite different
hierarchy of tribunals and are independent of and in no way
inferior to the ordinary courts, even the Cour de Cassation
having no power to review or revise the decisions of the
Conseil d‘ Etat. The administrative law in West Germany is
known as V erwaltungsrecht ; and the powers and procedure of
Administrative Courts in that country under the Federal
Administrative Court (Bundesverwaltungsgericht) are regulated by
the Administrative Courts Act, i960; and such Courts are in
no way subordinate to Bundesgeri chtshof, the Supreme Federal Court
of West Germany. The Administrative Courts, in East Germany,
1 DICEY: Law o£ the Constitution, 1962-ed., p. 333.
have now been set up under Art. 138 of the new Constitu-
tion of 1949.
There is yet another system of Courts, which is to be found,
as for instance, in the federal Republic of the United States, as also in
Australia and West Germany, whose Constitutions are modelled
partly upon that of the United States. In these countries, the duality
of judicial system consists in the existence of one set of Federal
Courts and the other of the State Courts. Federal Courts are
created by the Constitution or, under its authority, by an Act of
federal or central legislature, and deal exclusively with the federal
laws, civil and criminal. In the United States, the District Courts
(the lowest rung in the federal judicial ladder), the Courts of Appeal
and the National Supreme Court form the ascending hierarchy of
Constitutional Courts in the federal judicial system; and Justices
of the Peace or Magistrate’s Courts, Courts of General Trial juris-
diction, Intermediate Appellate Courts and the State Supreme
Court constitute another set of courts, called the State Courts.
Established in each of the United States by the legislative measures
of the State concerned, the State Courts deal exclusively with State
laws, and are, in no way, subordinate to the federal judiciary. The
competence of these courts does not extend to any of the federal
laws, in the same way as the federal courts, except the national
Supreme Court, cannot touch a State law. India, England, Canada,
and even the U. S. S. R., China and Japan, have only one judicial
system with nothing like Administrative Courts and Ordinary Courts
or Federal Courts and State Courts. All persons— private citizens or
public officials— are equally amenable to the same laws and to the
same courts in these countries.
Also, the courts in every country do not wield the power of judicial
review. In England, for instance, no tribunals, from County Courts
485 =5^2=
to the House of Lords, exercise this power. One reason for this
is that there being no written Constitution (of the type India or
the United States has), and any other legislative organ, in England,
the laws of Parliament are supreme and no question of uncons-
titutionality or repugnancy ever arises. The English Parliament,
in the oft-quoted words of De Lolme, an early Parliamentarian, can
do anything except make a man into a woman and a woman into a
man. An English judge, therefore, about a century ago, categori-
cally denying the power of judicial review, asked : ‘Are we to act
as regents over what is done by Parliament with the consent of
Queen, Lords and Commons ... . ?’
The French Courts also, including the Cour de Cassation , do
not possess the competence of judicial review ; and the Courts in
Italy, including the Corte Supreme di Cassa^ione, modelled upon
the judicial system of France, also do not possess this power. The
new 1 947 -Constitution of Italy has, however, conferred this
authority on the Corte Const it u^ionale (the Constitutional Court), as
the new 1946-Constitution of Japan, by its Article 81, vests that
power in the Supreme Court of that island, though that Court also
had no such power prior to the new Constitution, as the civil law
and the judiciary in Japan were patterned upon the legal system of
France. The new pattern was imported to Japan from the United
States, which had the main hand in giving the new Constitution to
that country after her defeat at the Second World War in 1945.
Likewise, in West Germany, the power of judicial review is not
possessed by any of the Courts, except the Federal Constitutional
Court, as reconstituted in September, 1951, under the Basic Law
(Bonn Constitution) of 1949, Art. 94(2), and the law of March 12,
1951. In Soviet Russia and China, no courts whatever wield the
power of judicial review ; and the U. S. S. R, Supreme Court has,
instead, been given the right to initiate legislation by the
Statute of the U. S. S. R. Supreme Court, dated February 12, 1957,
s. 1(3).
The United States, since the nineteenth century, and India,
since at least 1950, have been champions in the field of judicial
review. The nature of the Constitutions of the two great
countries, the clear division and definition of legislative powers
conferred upon the Central and State legislatures, with an
inviolable line of demarcation drawn in between their functions,
necessitated the task of judicial review. This power, though it is
not conferred, in express terms, by the Constitution of either of the
countries, is exercised by the State Supreme Courts in relation to
State laws and the National Supreme Court, to all laws, in the
United States, and by the High Courts, and the Supreme
Court of India in relation to all laws. ‘This Constitution’,
ordains Art. VI, s.2, of the U. S. Constitution, ‘and the laws of the
United States which shall be made in pursuance thereof shall
be the supreme law of the land, and the judges in every State shall
be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding’. The primary duty of a
Court to interpret the law, therefore, necessarily involves the power
to determine whether an Act of Legislature conforms to the Consti-
tution. Thus, the power of the Courts to rule on the constitution-
ality of laws and to invalidate the legislation violating the spirit of
the Constitution, which is supreme, is of the very essence of the
judicial function in both the countries.
In some of the countries, courts are elective and in others,
appointive. In Soviet Russia, the judges and the people’s assessors
of all courts are chosen for fixed terms by direct popular
election in the manner prescribed by the U. S. S. R. Constitution
487
of 1936. 1 No educational or other qualifications are re-
quired; and any citizen (including a woman) of the Union, who has
reached the age of 25 and has not only the formal but also moral
right to administer justice, may be elected a judge or assessor. The
judges report their activities periodically to their electorate in fac-
tories, offices, Kolkhoses and farms, are accountable only to their
electors for their work and that of their Courts, and can be ‘recalled’
by them prior to the expiry of their term of office for their impro-
per behaviour, laches or misconduct. 2 3
The judges of the Supreme Court of Japan are appointive ;
but their retention in office, after their appointment* is ‘reviewed’
by the voters at the first general election of the House of Represen-
tatives (lower house of the Japanese Parliament, DIET) following
their appointment ; and the judges are dismissed in case the majority
of voters favours the dismissal. 8
In East Germany also, the Attorney-General and the judges
of the Supreme Court and some of the superior Courts are chosen by
election, and can be recalled by their electors, in the manner pres-
cribed by the Constitution of 1949. 4
The judges of the State courts in most of the United States
are elected for fixed terms; while those of the Constitutional
Courts of the federal judiciary are appointed by the President with
the advice and consent of the Senate, 5 6 and hold office ‘during good
behaviour’. No qualification is prescribed either by the Constitu-
1 U. S. S. R. Const., Arts, 105 — 109.
3 Fundamentals of Legislation on Judicial System, Dec. 25, 1958, Arts. 33,
34 > 35 *
3 Jap, Const., Ait. 79.
4 GDR Const, of 1949, Arts. 130, 131, 13
5 U. S. Const., Art. II, s. 5(2).
6 Ibid., Art. Ill, s. 1.
488
tion or Act of Congress for appointment as judges ; but, generally,
men of legal experience and members of the Bar, belonging to the
political party of the President, are appointed. Out of the new
6 2 federal District Judges, appointed during the first ten months
of President Kennedy’s regime, three were Republicans and all the
rest came from the Democratic party. There is no system of rec-
ruitment by competitive examinations or appointment by promotion,
even in case of the judges of the national Supreme Court.
In France and Italy, on the other hand, all the judicial appoint-
ments to the courts of first instance are made by recruitment by
means of competitive examinations and to the higher courts, by
promotion. In France, one may become judge soon after obtaining
law diploma from the University, provided he is selected by means
of prescribed examination. ‘The result,’ as remarked by David and
Vries, 1 2 ‘is that the Bench and the Bar are separated by a formidable
barrier of differences in temperament, training and approach. The
French judge feels a far closer kinship with the professor of law
than with the avocat (advocate), whom he tends to regard as a mere
rhetorician’.
In England, the judges of the County Courts are appointed
from among the Barristers of at least seven years’ standing and hold
office up to the age of 72 ; while the Barristers of at least ten years’
standing are appointed judges of the High Court of Justice, who hold
office ‘during good behaviour’,2 Recently, however, an age-limit
has been fixed at 75. The judges of the Court of Appeal and the
1 The French Legal System, 1958-ed., p. 18.
2 An exception to this general rule is made in the case of Lord Chancellor,
who is appointed for five years with every new ministry and goes out of office with
the ministry.
House of Lords are, however, appointed by promotion from the
High Court of Justice and the Court of Appeal, respectively.
In India, the judicial officers of the Courts of first instance
are selected by competitive examinations, while those of superior
courts, mostly by promotion. Judicial appointments to the High
Courts and the Supreme Court are made partly by promotion and
partly by direct appointments.
The emolument for performing the judicial functions of the
Courts also varies from country to country. The judges of the
United States are probably the highest paid judicial officers in the
world. The annual salary of the Chief Justice of the U. S. Supreme
Court is 40,000 dollars, and that of the Associate Justices, 39,500
dollars, each. The Judges of the federal Courts of Appeal receive
33.000 dollars a year, each, while those of the federal District
Courts, 30,000 dollars, each. The annual salary of the Judges of
the State Supreme Courts (which correspond to the Indian High
Courts) varies from 14,000 dollars in North Dakota to 39,500
dollars in the State of New York, which pays its Chief Justice
42.000 dollars a year, and 37,000 dollars a year to each of the Judges
of the Courts of General Trial jurisdiction(district or county courts).
The annual salary of the County Court judges in England
is £2,800, each, and that of the Judges of the High Court of
Justice is £10,000, each; while the Judges of the higher courts
receive £12,000 a year, each.
Canada pays its Chief Justice 35,000 dollars a year ; while
each of the other Judges of the Canadian Supreme Court gets 30,000
dollars a year. The Chief Justice of a provincial Supreme Court
in Canada is paid 25,000 dollars a year, while other Judges of that
Court receive 21,000 dollars a year, each. The President and each of
the other Judges of the Exchequer Court also receive the same
amount, viz., 25,000 dollars and 21,000 dollars a year, respectively.
The entire emolument received by a District or County Court
Judge in Canada ranges between 18,000 dollars and 23,000 dollars a
year and varies from province to province ; while the salary
of Magistrates, which also varies from province to province, ranges
between 65,00 dollars and 12,600 dollars a year.
The Judges of the Continental courts, including those in France,
are, however, not so highly paid as their counterparts in English-
speaking countries ; even though, as in India, so in France, most of
the Judges are men of brilliant career and extraordinary ability posses-
sing high degree of legal talents. The Bench, both in France and
India, is highly respected by the people and the Judges enjoy high
dignity, prestige and social standing.
My Reminiscences of the Allahabad High Court
By
SRI G. S. PATHAK
Union Law Minister
j&|I H J OINED the High Cou rt Bar in the year 1928, I shall endeavour
Sfe to give the picture of the High Court as I saw it in those
days. Tradition had it that in the history of the High Court there
were always two outstanding personalities at the Bar who generally
appeared on opposite sides in important cases. They were of equal rank
and dominated the scene as friendly rivals. Motilal Nehru and Sunder
Lai were bracketed together. Later came Tej Bahadur Sapru and
Satish Chandra. Dr. Sen took the place of Satish Chandra after his
death. Pyare Lai Banerji and Dr. Katju followed. In 1928 and the
years following, there was a phalanx of seniors and the juniors had
little chance of rising fast to reach the higher ranks. Apart from the
names already mentioned, there were Uma Shanker Bajpai, Iqbal
Ahmad and Sham Kishan Dar in addition to a few others. They
practically monopolised the senior briefs.
493
Sir Sunder Lai had passed away before 1928. Motilal Nehru
had given up regular practice. He, however, appeared occasionally
in celebrated cases. He appeared in the Bail Applications in the
Meerut Conspiracy case. The Court room was packed to the full.
A number of counsel appeared on behalf of the accused. Among
them, Motilal Nehru was the last to speak and his 45 minutes’
address was most refreshing and created the greatest impression. He
was opposed by Langford James, the leader of the Calcutta Bar. In
reply Langford James started with the sentences : “My Lord, had
I not felt ”. He intended to say that he would not have
opposed the bail application had he not felt that there was no
substance in it. But before the sentence was complete Motilal Nehru
interjected-, T want a ruling from the Court. Is it a place for express-
ing one’s feelings or making submissions.’ The ruling came from
the Bench which was presided over by Sir Grim wood Mears, ‘You are
right Pandit, this is a place for making submissions.’ Langford
James did not expect this interruption and the flow of his subsequent
arguments was upset. I also watched Motilal Nehru arguing a com-
pany matter before Mr. Justice Ashworth. He was building up a
case of fraud on the basis of circumstantial evidence. Small bits of
evidence were skilfully pieced together and ultimately the full
picture of fraud was before the court.
Since those days, the system of working and the terms on
which the seniors and juniors worked have completely changed. I
believe that juniors in those days were more fortunate in one respect.
The system of transferring briefs by seniors, whose hands were full
with big cases, to juniors was very common. A promising junior
was given a fair chance. If his work gave satisfaction, he was very
much in demand. He would be complimented on his arguments in
court both by his senior colleagues and sometimes by the Judges.
<=■2^ 494
Briefs from seniors came in quick succession and most seniors paid for
the work taken from the juniors. Some Judges were particularly good
to juniors. They even mentioned in the judgments the names of the
juniors who argued cases before them with words of commendation :
‘Mr. ‘X’ argued the case with great skill and ability’, ‘Mr. ‘Y’ argued
the case with great enthusiasm’ and so on. When these judgments
were reported, the juniors attracted attention and became known to
the mofussil lawyers and the litigant public. At the time of admis-
sion of cases a junior sometimes had a better chance than his senior.
Mr. Justice Niamatullah was one of those Judges, who never allowed
a junior, when pitted against a senior in his court, to feel that the
latter had an advantage over him. That learned Judge used to say
that if a Judge were not to concentrate on what is said but paid
undue attention to who said it, he gave evidence of his own incom-
petence. I was once arguing an admission case before him and Mr.
Justice Pollock. Mr. Justice Niamatullah was the junior judge.
After hearing me for a few minutes, Mr. Justice Pollock remarked :
‘I do not wish to hear you any more. There is nothing in your case.’
Mr. Justice Niamatullah at once said : ‘Mr. Pathak, you go on. I
shall hear you.’ Thereupon I was allowed to argue my case fully.
Sir Shah Mohammad Sulaiman was a talking Judge. Once Sir
Tej was arguing a case before him and was not free when wanted in
the Chief Justice’s Court before a Bench consisting of Sir Grimwood
Mears, C. J. and Mr. Justice Sen. Sir Grimwood Mears asked Sir Charles
Alston, who happened to be present in his court, “Do you know
where Sir Tej is?” Out came the reply, “My Lord, he is listening to
Sir SHah Sulaiman in the adjoining Court-room.” Comparisons
are odious. But it must be said that there was no senior more kind,
more generous and more solicitous of the welfare of juniors than
Sir Tej.
Coming to more recent times. It was commonly said about
Pyarelal Banerji that few, if any at all, had spoken such good English
in the Allahabad High Court as he did. He was master of chaste
legal diction. When he was arguing it was difficult to say whether
he was reading from a House of Lords’ decision or he was making his
own argument. Happily Dr. Katju is with us. I must refer to at
least one incident about him. When his case was called on and Dr.
Katju stood up to open it, the Chief Justice asked, “What is all this
we are reading in the newspapers about the Chamber of Princes ? **
Dr. Katju snapped, “I see, your Lordship is reading newspapers
these days.” There was a ripple of laughter in court and without
any further delay the case started.
496
Some Judges and Lawyers Whom l Knew
By
DR. KAILAS NATH KATJU
Formerly Governor of Orissa and West Bengal 3 and Union Minister for Home
Affairs and Defence and Chief Minister of Madhya Pradesh
STARTED my career of legal profession in Kanpur in the year
1908 and shifted to the High Court Bar at Allahabad in
March 1914. At that time there were 7 Judges in the Allahabad High
Court, the Chief Justice being Sir Henry Richards. Among them,
two were very senior learned Judges— Sir George Knox, i.c.s. and
Sir Parmoda Charan Bannerji, p.c.s. They had been appointed
in 1890 and 1892 respectively. They were then two of the oldest
Judges in the High Courts of India. After their appointment the
60 years Rule had come into force and they were exempted from
its operation. The rule is said to have originated from a protest
made and a movement started by members of the Indian Civil
Service. Till then there was no age-limit applicable to the Judges
of the High Courts in India. Speaking generally, one-third of the
High Court Judges including the Chief Justice were required to be
Barristers-at-law called to the Bar by Inns of Court in England and
one-third were required to be members of the Indian Civil Service
497 ^
but there was no restriction of any kind regarding the remaining
one-third. They were generally chosen from members of the
Provincial Judicial Service or from the members of the Vakil High
Court Bar in India. Under the I. C. S. Rules, then in force, a
member of the Civil Service might be called upon to retire after
35 years service. That meant that his retirement came any time
when he was over 56 years of age but if any member of the Indian
Civil Service (Judicial Branch) was elevated to the High Court
Bench then he could continue as a judge of the High Court as long
as he pleased. His continuance as a Judge of the High Court for
any great length of time blocked the promotion of his colleagues in
the Judicial Service junior to him to the High Court Bench. They
could not stay on till his retirement but had to vacate and retire
under the 35 years Rule. It is said that the members of the Indian
Civil Service drew attention to this, what they called, unfair and
unjust, feature of the current practice so far as the I. C. S. was
concerned and they insisted and prayed that Judges of the High
Court drawn from the I. C. S. should be compelled to retire in
accordance with the I. C. S. Rules, so that their juniors in the
service may have a fair chance of promotion to the High Court
Bench. This representation was considered forceful but the higher
authorities considered it improper to make a distinction between
the High Court Judges inter se in the matter of retirement. So
it was thought fair and prudent to impose an age-limit of 60 on all
the High Court Judges of India without any distinction between
them. This rule came into operation some time in 1895 or so but
as I have already said above Sir George Knox and Sir Pramoda
Charan Bannerji having been appointed as Judges much earlier were
exempted from the Rule. They continued to function as Judges
for many years till they were over 82 or so.
Sir George Knox was the Administration Judge also in the
Allahabad High Court and continued as the Administration Judge
for very many years. He generally used to sit alone all by himself
and was considered to be an ordinary but slow Judge not very alert
and given almost to an occasional napping on the Bench. He was
a kind-hearted Judge and was indeed kind towards all juniors who
appeared before him. In my younger days I used to appear before
him occasionally. One scene I always remember, it was so amusing.
I was arguing a criminal revision before him. The accused-applicant
had been convicted of house-breaking at night. The master of the
house had left his home to catch a night train at a railway station
some miles away from the village. Unfortunately, he missed the
train and had to return home at about 2 o’clock at night. He
found the door open and the accused inside the home. He caught
hold of him and took him to the police station on a charge of house-
breaking at night. The defence of the accused was that there was
no question of any house-breaking at all. One of the female
residents of the house who knew him well had called him and he
had gone there on her invitation. This explanation was not believed
by the lower courts and he was convicted. In my youthful enthu-
siasm I dwelt upon it with great warmth and pleaded strenuously in
the alternative for the reduction of the sentence. I urged that
there was no intention on his part to commit any criminal offence.
The accused was only carrying on a love affair and so on. Sir George
Knox appeared to me to be listening to me with great attention and
I thought that I was making a great impression upon him and that
added to the vehemence of my argument. Suddenly Sir George
Knox burst forth with the remark, “I have been considering whether
it is not a case for enhancement of the sentence. Just imagine a
Gadaria breaking into the house of a Brahmin for nefarious activities
499 *££*
like this.” I was literally stunned and at once collapsed and sat
down. The application was dismissed.
I remember another case in which my honoured friend Sri
Shyam Kishan Dar was arguing a second appeal before Sir George
Knox with great eloquence and persuasion. I was appearing for the
respondent in that appeal. I was sitting close to Sri S. K. Dar. I do
not know what happened to me. I suddenly rose and submitted
“My Lord, my learned friend is indebted to his imagination for
his facts and to his fancy for his arguments” and then deliberately I
moved three chairs away from Sri S. K. Dar noticeably apprehending
some aggressive movement from his side. Sir George was struck
by the comedy of the scene, and he laughed outright. Sri Dar, of
course, was furious.
Sir George had become accustomed to sitting singly and every-
body thought that he used to take the discharge of his judicial
duties on the Bench very lightly. When Sir Grimwood Mears came
to Allahabad as a Chief Justice of the High Court we all thought he
took notice of the current situation and began to sit with Sir George
Knox on a Division Bench. Sir George now had to keep awake and
apply his mind continuously to the case before him. He could not
stand this mental pre 
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